Reyes v. United States Department of the Interior et al

Filing 41

ORDER denying 36 Plaintiff's Motion for Attorney Fees and costs. Signed by Judge John A. Houston on 9/08/2021. (All non-registered users served via U.S. Mail Service)(jpp)

Case 3:18-cv-00366-JAH-RBB Document 41 Filed 09/07/21 PageID.201 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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EMILIO REYES,

Case No.: 18cv00366 JAH-RBB
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S
MOTION FOR FEES AND COSTS
[Doc. No. 36]

UNITED STATES DEPARTMENT OF
THE INTERIOR, et. al.

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Defendants.

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Pending before the Court is Plaintiff’s Motion for Fees and Costs pursuant to Federal

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Rule of Civil Procedure 54(d), 5 U.S.C. section 552(a)(4)(E)(i) and this Court’s order

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granting his motion for voluntary dismissal. Plaintiff argues he is entitled to an award of

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fees and costs because Defendants changed their position regarding his Freedom of

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Information Act (“FOIA”) requests just before the Court was ready to render a decision

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favorable to him. Under the FOIA, a “court may assess against the United States

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reasonable attorney fees and other litigation costs reasonably incurred in any case. . .in

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which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). A plaintiff

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has substantially prevailed if he obtained relief through either (I) an order, written

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agreement or consent decree or (II) “a voluntary or unilateral change in position by the

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agency.” Id.

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Plaintiff maintains he filed two FOIA requests with the Office of Federal

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Acknowledgement but received no response within the 20-day deadline or any

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correspondence justifying an extension of the deadline, and although he was told he would
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receive clarification letters when he sought a status on the outstanding requests, he received
none. He further maintains he filed administrative appeals but never received a decision.
After filing the complaint in this matter, he contends Defendant waived fees associated
with and produced documents responsive to his requests.
Because the agency changed its position by waiving fees and producing documents,
he argues he is eligible to recover his fees and costs. Plaintiff further argues that this action
benefitted the public by ensuring the government has properly carried out its trust, fiduciary
and statutory duties to San Pasqual and Gabrielino Tribes and he stands to gain nothing
commercially from the documents requested. Plaintiff also argues the fees and costs he
seeks are reasonable.

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Defendants argue Plaintiff cannot recover his fees because he was never represented

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by an attorney in this litigation and, instead, he represented himself and a pro se, non-

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attorney cannot recover attorney fees under the FOIA. They maintain Plaintiff lists fees he

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paid a legal consultant but has not identified the consultant, described the consultant’s

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relationship to this case, nor submitted billing records or records of payment for these fees.

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Therefore, they argue, there is not enough information to address the reasonableness nor

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appropriateness of these purported charges. Defendants also contends Plaintiff failed to

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seek to recover fees in his FOIA complaint.

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Additionally, Defendants argue Plaintiff is not eligible or entitled to costs because

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Plaintiff cannot meet his burden of showing the lawsuit caused the agency to release

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records. Defendants contend Plaintiff filed this case while they were reviewing over

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11,000 records potentially responsive to Plaintiff’s FOIA requests, many of which

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contained personal and private information such as dates of birth, addresses, and tribal

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affiliation. The delay in production, they maintain, was due to the volume of the records

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as well as the private information contained therein, which required individual review.

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Defendants argue the Court’s prior rulings on substantially similar arguments asserted by

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Plaintiff in related FOIA cases demonstrate there is no basis for Plaintiff’s contention that

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this Court would have ruled in his favor in this case.
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As noted by Defendants, “a pro se litigant may not recover attorney’s fees under the
FOIA.”

Carter v. Veterans Administration, 780 F.2d 1479, 1481 (9th Cir.1986).

Accordingly, Plaintiff is not entitled to recover fees he incurred representing himself in this
action. Plaintiff’s list of fees includes multiple entries for legal consultations. However,
no attorney made an appearance in this action. Even assuming these are attorney fees
recoverable under the statute, there is insufficient information for the Court to determine if
these fees were reasonably incurred.
While a pro se litigant may not recover fees, a court may, in its discretion, award a

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prevailing pro se plaintiff reasonably incurred costs. 5 U.S.C. § 552(a)(4)(E); Carter, 780

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F.2d at 1482. Defendants demonstrate they were in the process of individually reviewing

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the voluminous documents responsive to Plaintiff’s requests when he filed the action

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because many contained private information. This Court granted judgment in Defendants’

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favor in Plaintiff’s related cases1 in which he sought similar information, upon finding the

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privacy interests of withheld information outweighed the public interest in the information.

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The Court’s rulings in the related cases and Defendants’ explanation that they were

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reviewing the documents responsive to Plaintiff’s requests when he filed the action do not

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support Plaintiff’s contention that the agency changed its position regarding his FOIA

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requests just before the Court was going to find in his favor. Plaintiff fails to demonstrate

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he substantially prevailed in this matter.

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Based on the foregoing, IT IS HEREBY ORDERED Plaintiff’s motion for fees and
costs is DENIED.

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DATED:

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September 7, 2020
_________________________________
JOHN A. HOUSTON
United States District Judge

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Reyes v. U.S. Dep’t of the Interior, 17cv01418 JAH-RBB; 17cv01571 JAH-RBB.
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18cv00366 JAH-RBB