Western Energy Alliance v. U.S. Fish and Wildlife Service

Filing 16

OPINION AND ORDER DENYING MOTION FOR ATTORNEY FEES: Plaintiff Western Energy Alliance's Motion for Attorney Fees and Costs 13 is DENIED. by Chief Judge Marcia S. Krieger on 9/2/14. Text Only Entry(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 13-cv-02811-MSK
WESTERN ENERGY ALLIANCE,
Plaintiff,
v.
U.S. FISH AND WILDLIFE SERVICE,
Defendant.
______________________________________________________________________________
OPINION AND ORDER DENYING MOTION FOR ATTORNEY FEES
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Motion for Attorney Fees and
Costs (# 13) by Plaintiff Western Energy Alliance (“WEA”), to which Defendant U.S. Fish and
Wildlife Service (“FWS”) responded (# 14), and WEA replied (# 35).
WEA initiated this action under the Freedom of Information Act (“FOIA”) seeking
disclosure of documents related to the peer review of the Greater Sage-grouse Conservation
Objectives Final Report. FWS concedes that it did not respond to WEA’s request until litigation
commenced, but the parties stipulated to the dismissal of the case (# 10) on January 22, 2014,
having “come to an agreement concerning” the FOIA request without the Court entering a single
order in the case and only shortly after FWS’s answer was filed.
A district court may, in its discretion, award attorney fees under FOIA. See 5 U.S.C.
§ 552(a)(4)(E)(i); Anderson v. Sec’y of Health & Human Servs., 80 F.3d 1500, 1504 (10th Cir.
1996). To make the determination, a court first considers whether the complainant has
established that it is eligible for an award under the statute and, second, whether a fee award is

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otherwise justified. See Anderson, 80 F.3d at 1504. A complainant is eligible for an award of
reasonable attorney fees and other litigation costs if the complainant has “substantially
prevailed.” See § 552(a)(4)(E)(i). A complainant has “substantially prevailed” if he or she has
obtained relief through either (i) a judicial order (or enforceable written agreement or consent
decree); or (ii) a voluntary or unilateral change in position by the agency, where the
complainant’s claim was not insubstantial. § 552(a)(4)(E)(ii). Determination of whether an
award is otherwise justified involves consideration of four factors: (1) the benefit to the public, if
any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the
complainant’s interest in the records sought; and (4) whether the government’s withholding of
the records had a reasonable basis in law. Anderson, 80 F.3d at 1504. WEA bears the burden of
establishing entitlement to an award of attorney fees. Id.
FWS does not contest WEA’s eligibility for an award of attorney fees, but nonetheless
argues that none of the four factors support the WEA. FWS additionally challenges WEA’s
billing records and contends that the fees claimed are excessive. WEA asserts that all of the
factors support an award of attorney fees.
The test for the first factor, public benefit, is whether the information that was disclosed
assists the public in making an informed judgment as to governmental operations. See Aviation
Data Serv. v. Fed. Aviation Admin., 687 F.2d 1319, 1323 (10th Cir. 1982). In weighing this
factor, a court takes into consideration the degree of dissemination and likely public impact from
the disclosure. See id. (quoting Blue v. Bureau of Prisons, 570 F.2d 529, 533-34 (5th Cir.
1978)). “The test . . . is whether the disclosure will assist the citizenry generally in making an
informed judgment as to governmental operations.” Id. WEA, in its motion, asserts that the
information was shared “with its members and other stakeholder groups,” and “referenced” in

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lobbying activities. WEA, in its reply, also suggests that its use of the material has been
somewhat successful in attracting the attention of policy makers. Although WEA nakedly
alleges that its use of the material will benefit the public, there is no demonstration that the
documents were disseminated for the benefit of the “public” as opposed to the benefit of only
WEA’s dues-paying members. The purpose of FOIA is to provide the public with information
that sheds light on the government’s performance of its duties. See Forest Guardians v. U.S.
Fed. Emergency Mgmt. Agency, 410 F.3d 1214, 1217 (10th Cir. 2005). Even assuming that the
limited materials that WEA obtained would be of substantial public interest – it appears the final
version of the report was already public – WEA has used the material exclusively for the benefit
of its members and failed to disseminate it to the public. Thus, the first factor weighs against an
award of attorney fees.
WEA’s use of the material also informs the Court’s analysis of the second and third
factors, the commercial benefit to the complainant and the nature of the complainant’s interest in
the records sought. These factors “assess whether a plaintiff has ‘sufficient private incentive to
seek disclosure’ without attorney’s fees.” Davy v. C.I.A., 550 F.3d 1155, 1160 (D.C. Cir. 2008).
The U.S. Court of Appeals for the District of Columbia Circuit has stated that “FOIA’s
attorney’s fees provision . . . was designed to lower the often insurmountable barriers presented
by court costs and attorney fees to the average person requesting information under the FOIA”
and, therefore, “when a litigant seeks disclosure for a commercial benefit or out of other personal
motives, an award of attorney’s fees is generally inappropriate.” Tax Analysts v. U.S. Dep’t of
Justice, 965 F.2d 1092, 1095 (D.C. Cir. 1992) (quotation and ellipses omitted), superseded by
statute on other grounds as recognized in Summers v. Dep’t of Justice, 569 F.3d 500, 502 (D.C.
Cir. 2009). WEA achieves a benefit for its members by obtaining the FOIA materials and has

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used the information exclusively to support the limited interests that make up its membership,
without demonstrating that it has added the materials “to the fund of information that citizens
may use in making vital political choices.”1 Aviation Data Serv., 687 F.2d at 1323 (quoting
Blue, 570 F.2d at 534). This suggests that WEA’s “private self-interest motive” is “sufficient to
insure the vindication of the rights given in the FOIA,” and there is “no need to award attorney’s
fees to insure that the action will be brought.” Id. at 1322 (quoting Fenster v. Brown, 617 F.2d
740 (D.C. Cir. 1979)).
The fourth factor, whether the government had a reasonable basis in law for withholding
the records, however, weighs for an award of attorney fees. FWS admits that it “did not respond
to the request until litigation had commenced.” For the initial delay, it blames an internal
processing error that resulted in the request not being “forwarded to the correct region within
FWS for processing.” When the request was renewed, FWS merely states that it was forwarded
to the appropriate region, but the relevant FOIA coordinator “was on vacation that week, and
again the request was not appropriately handled.” Nearly three months later, an individual was

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WEA seeks to draw analogies to other cases in which the plaintiff had a commercial
interest or there was a limited audience for the materials that were obtained by FOIA, and in
which attorney fees were nonetheless granted. The cases to which WEA refers, however, do not
support it. In Prison Legal News v. Executive Office for U.S. Attorneys, No. 08–cv–01055–
MSK–KLM, 2010 WL 3170824 (D. Colo. Aug. 10, 2010), this Court awarded attorney fees,
stating that the relevant information would likely only be seen by a “relatively small” portion of
the public. Id. at *2. In that case, however, unlike in the present matter, the information was
posted on the plaintiff’s website and at least theoretically available to the entire public. Id.
Similarly, a private benefit was conferred in Playboy Enterprises, Inc. v. U.S. Customs Service,
959 F. Supp. 11 (D.D.C. 1997), but the court also stated its expectation that the case would result
in the government agency making “prospective changes in its operations to prevent a recurrence”
of the negative conduct at issue in that case, and the court concluded that, “[i]f this is not a public
benefit then it would be difficult to discern what would meet that definition.” Id. at 17. Finally,
in American Small Business League v. U.S. Small Business Administration, No. C 08-00829
MHP, 2009 WL 1011632 (N.D. Cal. Apr. 15, 2009), the court found that the plaintiff acted for
the purpose of verifying the government’s allegation “for the public.” Id. at *3. In the present
matter, by contrast, WEA appears to act primarily for the commercial benefit of its members.

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tasked with processing backlogged FOIA requests in the region, and she learned that the
responsive documents were being reviewed by the Department of the Interior’s Office of the
Solicitor in conjunction with another FOIA request. No further action was taken until after
WEA’s lawsuit was filed. It is difficult to divine a “reasonable basis in law” that could support
the government’s delay.
Nonetheless, because three of the four factors weigh against an award, and FWS
cooperated in resolving the matter quickly after litigation commenced, the Court finds that an
award of attorney fees is not justified in this case. The Court does not find that the government
acted in bad faith such as to overcome the balance of the other three factors. See Aviation Data
Serv., 687 F.2d at 1322.2
IT IS THEREFORE ORDERED that Plaintiff Western Energy Alliance’s Motion for
Attorney Fees and Costs (# 13) is DENIED.
Dated this 2nd day of September, 2014.
BY THE COURT:

Marcia S. Krieger
United States District Judge 

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Additionally, the Court notes significant concerns regarding the accuracy and amount of
WEA’s motion for fees. At a minimum, the billing records reflect several hours of work that
appear to have been on another matter. Moreover, WEA seeks a total award of fees and costs of
$37,061.52, of which substantially more than fifty percent was allegedly incurred drafting the
motion for attorney fees and the reply (essentially “fees for fees”). In a case of similar
complexity, the Court has concluded that “no more than five hours for briefing [was] reasonable
to address the attorney fee issue.” Prison Legal News, 2010 WL 3170824, at *4.

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