White v. Executive Office of US Attorneys et al

Filing 62

ORDER DENYING 57 MOTION for Litigation Costs filed by William A. White. Signed by Magistrate Judge Reona J. Daly on 3/19/2020. (ely)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

WILLIAM A. WHITE,

Plaintiff,
vs.
EXECUTIVE OFFICE OF US
ATTORNEYS, FEDERAL BUREAU OF
INVESTIGATION, DEPARTMENT OF
JUSTICE,
Defendants.

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CASE NO.

18-cv-841-RJD

MEMORANDUM AND ORDER
DALY, Magistrate Judge:
This matter is before the Court on the Motion for Litigation Costs (Doc. 57) filed by
Plaintiff. Defendant, Department of Justice, filed a response (Doc. 58).
Background
Plaintiff, William White, filed this FOIA action seeking an order compelling the Executive
Office of United States Attorneys (“EOUSA”) and the Federal Bureau of Investigation (“FBI”) to
produce voluminous records. Specifically, Plaintiff sought from EOUSA records pertaining to
his prosecution in several federal judicial districts (Doc. 10). Defendants filed a motion for
summary judgment on behalf of EOUSA on Counts One and Two arguing Plaintiff failed to
exhaust his administrative remedies as required by FOIA (Doc. 27). Additionally, Plaintiff filed
a Motion for Partial Summary Judgment (Doc. 32). On January 21, 2020, the Court denied
Plaintiff’s motion for summary judgment, granted EOUSA’s motion for summary judgment on
Count 1, and granted in part, denied in part EOUSA’s motion for summary judgment on Count 2.
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The Court determined Defendant EOUSA failed to meet their burden of proof that Plaintiff failed
to exhaust his administrative remedies as to four requests. The Court ordered Defendant EOUSA
to re-open Plaintiff’s FOIA requests 2017-000885 – 000888 and to conduct a reasonable search of
records responsive to the requests within 30 days. The Court made clear nothing in the order
precluded EOUSA from withholding documents subject to specific exemptions. EOUSA was
directed to supplement the record consistent with the order, and if warranted, to produce responsive
records.
Legal Standard
The FOIA provides that a Court may assess costs against the United States if the
complainant under the act substantially prevails in the action. See 5 U.S.C. § 552(a)(4)(E)(i). A
pro se plaintiff, however, may only recover costs, not attorney’s fees, since he had no attorney.
DeBold v. Stimson, 735 F.2d 1037, 1042-43 (7th Cir. 1984). A plaintiff may substantially prevail,
and thus be eligible for a fee or cost award, either by a judicial order, an enforceable written
agreement, a consent decree or a voluntary or unilateral change in the agency’s position if the
complainant’s claim is not insubstantial. 5 U.S.C. § 552(a)(4)(E)(ii). The plaintiff carries the
burden of proving he substantially prevailed under the foregoing standard. Pyramid Lake Paiute
Tribe v. United States DOJ, 750 F.2d 117, 119 (D.C. Cir. 1984). A plaintiff does not carry this
burden simply by showing documents were released after a lawsuit was filed. First Amendment
Coalition, 878 F.3d at 1128; Calypso Cargo Ltd. v. United States Coast Guard, 850 F. Supp. 2d
1, 4 (D.D.C. 2011), aff'd, No. 12-5165, 2012 WL 10236551 (D.C. Cir. Nov. 1, 2012). Even if the
plaintiff substantially prevailed, the Court has discretion to determine whether he is entitled to fees
or costs. See Morley v. CIA, 894 F.3d 389, 391 (D.C. Cir. 2018). Four criteria have been
constructed to assist the court in exercising its discretion as to the award of attorneys' fees under
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FOIA: (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.” Solone v. I.R.S., 830
F. Supp. 1141, 1142–43 (N.D. Ill. 1993).
Analysis
Plaintiff seeks costs in the amount of $729.50 arguing the Court should find he
“substantially prevailed” because the Court ordered Defendant EOUSA to reopen four of his
requests. Defendants argue Plaintiff has not “substantially prevailed” in this litigation such that
he is eligible for consideration of entitlement to costs.

Defendants contend none of the

discretionary factors weigh in favor of an award of costs. The counts on which Defendants were
denied summary judgment relate to Plaintiff’s efforts to obtain material regarding his prior
convictions. Defendants argue a prisoner’s interest in attacking his own conviction is not a public
interest.
The Court finds Plaintiff has not substantially prevailed in this litigation. The Court
denied Defendants’ motion for summary judgment on exhaustion as to a portion of one count
finding Defendants failed to meet their burden of proof as to certain FOIA requests. The Court
did not find Plaintiff was entitled to summary judgment, merely that there was a question of fact
as to whether EOUSA received Plaintiff’s certification of identity. Plaintiff has failed to meet the
burden of proving he substantially prevailed.
Conclusion
For the reasons set forth above, the Motion for Litigation Costs filed by Plaintiff (Doc. 57)
is DENIED.
IT IS SO ORDERED.
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DATED: March 19, 2020
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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