Bush v. United States Department of Agriculture Risk Management Agency

Filing 30

ORDER granting 20 Motion for Summary Judgment by United States Department of Agriculture. Judgment shall enter against the plaintiff. Signed by Chief Magistrate Judge CJ Williams on 08/17/2017. (copy w/NEF mailed to Pltf) (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
WILLIAM J. BUSH,
Plaintiff,

No. 16-CV-4128-CJW

vs.

MEMORANDUM OPINION
AND ORDER

UNITED STATES DEPARTMENT OF
AGRICULTURE, RISK
MANAGEMENT AGENCY,
Defendant.
____________________
I.

INTRODUCTION

This matter is before the Court pursuant to defendant’s summary judgment motion.
(Doc. 20). Plaintiff filed a timely resistance. (Doc. 26). The Court heard oral argument
on July 20, 2017. For the reasons set forth below, the Court grants defendant’s motion
for summary judgment.
II.

PROCEDURAL HISTORY

On November 16, 2016, pro se plaintiff, William J. Bush, filed this action against
the Risk Management Agency (RMA), an agency of the United States Department of
Agriculture (USDA), pursuant to the Freedom of Information Act (FOIA), seeking the
disclosure of soybean and corn yields within four townships in Cherokee County, Iowa,
as well as other relief involving attorney fees and litigation costs and intra-agency
disciplinary action. (Doc. 1).
On December 5, 2016, plaintiff filed an amended complaint. (Doc. 3). On June
8, 2017, the Court denied plaintiff’s pro se motions and defendant’s motion to dismiss.
(Doc. 25). The Court found summary judgment was the most appropriate vehicle to

assess the issues raised by defendant in its motion to dismiss. Plaintiff was ordered to
file a response to defendant’s summary judgment motion by June 22. Plaintiff timely
resisted the motion. (Doc. 26). Subsequently, defendant filed a timely reply. (Doc.
27). The summary judgment motion is now ripe.
III.

SUMMARY JUDGMENT STANDARDS

Generally FOIA-based lawsuits are best handled on summary judgment. See, e.g.,
Def. of Wildlife v. U.S. Border Patrol, 623 F. Supp.2d 83, 87 (D. D.C. 2009) (“FOIA
cases typically and appropriately are decided on motions for summary judgment.”) (citing
Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp.2d 68, 73 (D. D.C. 2007); Farrugia
v. Exec. Office for U.S. Att’ys, No. Civ.A. 04-0294 PLF, 2006 WL 335771, at *3 (D.
D.C. Feb. 14, 2006)); Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp.2d 19,
25 (D. D.C. 2000) (“FOIA litigation is typically adjudicated through summary
judgment.”). Summary judgment is appropriate when the movant shows that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a) (2016). A movant must cite to “particular parts
of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A fact is “material” if it “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(citation omitted). “An issue of material fact is genuine if it has a real basis in the
record[,]” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted),
or “when a reasonable jury could return a verdict for the nonmoving party on the
question[,]” Wood v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (internal
quotation marks and citation omitted). Evidence that presents only “some metaphysical
doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986), or evidence that is “merely colorable” or “not significantly
probative,” Anderson, 477 U.S. at 249-50, does not make an issue of fact genuine. In
2

sum, a genuine issue of material fact requires “sufficient evidence supporting the claimed
factual dispute” that it “require[s] a jury or judge to resolve the parties’ differing versions
of the truth at trial.” (Id. at 248-49 (internal quotation marks and quotation omitted)).
The party moving for summary judgment bears “the initial responsibility of
informing the district court of the basis for its motion and identifying those portions of
the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395. Once
the moving party has met this burden, the nonmoving party must go beyond the pleadings
and by depositions, affidavits, or other evidence designate specific facts showing that
there is a genuine issue for trial. Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910
(8th Cir. 2005).
In determining whether a genuine issue of material fact exists, courts must view
the evidence in the light most favorable to the nonmoving party, giving that party the
benefit of all reasonable inferences that can be drawn from the facts. Matsushita, 475
U.S. at 587-88 (citation omitted); see also Reed v. City of St. Charles, Mo., 561 F.3d
788, 790 (8th Cir. 2009) (stating that in ruling on a motion for summary judgment, a
court must view the facts “in a light most favorable to the non-moving party—as long as
those facts are not so ‘blatantly contradicted by the record . . . that no reasonable jury
could believe’ them.”) (alteration in original) (quoting Scott v. Harris, 550 U.S. 372,
380 (2007)). A court does “not weigh the evidence or attempt to determine the credibility
of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir.
2004) (citation omitted). Rather, a “court’s function is to determine whether a dispute
about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 137677 (8th Cir. 1996).
The Eighth Circuit Court of Appeals has explained:
In a FOIA case, summary judgment is available to a defendant agency
where “the agency proves that it has fully discharged its obligations under
FOIA, after the underlying facts and the inferences to be drawn from them
are construed in the light most favorable to the FOIA requester.” Miller v.
3

U.S. Dep’t of State, 779 F.2d 1378, 1382 (8th Cir. 1985) (citing Weisberg
v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).
Mo. Coal. for Env’t Found. v. U.S. Army Corps of Eng’rs, 542 F.3d 1204, 1209 (8th
Cir. 2008). See also Twist v. Gonzales, 171 Fed. Appx. 855, 855 (D.C. Cir. 2005)
(“The factual question . . . is whether the search was reasonably calculated to discover
the requested documents, . . .” (first alteration in original)). A District Court may grant
summary judgment for the government “based solely on the information provided in
affidavits or declarations when the affidavits or declarations describe ‘the justifications
for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either
contrary evidence in the record nor by evidence of agency bad faith.’” Fischer v. U.S.
Dep’t of Justice, 596 F. Supp.2d 34, 42 (D. D.C. 2009) (quoting Military Audit Project
v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)).
The agency has the burden to prove that each requested record is either:
unidentifiable, produced, or exempt from FOIA. Miller, 779 F.2d at 1382-83. To
oppose a summary judgment motion, the non-moving party “cannot simply rest upon
conclusory statements, but must instead set forth affirmative evidence showing a genuine
issue for trial.” Physicians for Human Rights v. U.S. Dep’t of Defense, 675 F. Supp.2d
149, 156 (D. D.C. 2009) (internal quotation marks and citations omitted).
A district court reviews the agency’s denial of the FOIA request de novo. Fischer, 596
F. Supp.2d at 42.
IV.

UNDISPUTED FACTS

In February 2016, plaintiff filed a FOIA request with the RMA requesting the
following information:
[A]gency records relating to the aggregation by section of total production,
acres harvested and yield for corn and for soybeans for four townships
[Amherst, Rock, Sheridan, and Tilden] in Cherokee County, Iowa for four
years [2012, 2013, 2014, 2015].
4

(Doc. 1, at 1). Plaintiff’s above request was made on March 1, 2016, and assigned
number 2016-RMA-02545-F. (Id.). The complaint contains an appendix of attachments.
These attachments encompass the communications between the government and pro se
plaintiff. (Doc. 1, at 19-32). The agency provided a “no records” response to plaintiff’s
request. The agency explained that it did not have information available by sections1 for
townships within a county. The agency also explained that the Federal Crop Insurance
Act prohibits the disclosure of identifying producer information and limits disclosure of
producer information to the public only in the aggregate form. The agency also directed
plaintiff to (http://www.rma.usda.gov/ftp/Miscellaneous_Files/Area_Yield_Data/), a
page on its website containing several data files. Specifically, RMA’s FOIA Officer
directed plaintiff to “cy2016_production_area_yield_history_1130.zip” for an average
yield of soybeans and corn. (Doc. 1, at 25). This zip file contains historical aggregate
yields for the production area of Cherokee County, Iowa, for irrigated and non-irrigated
soybeans (from crop years 1991 to 2014) and for irrigated and non-irrigated corn (from
crop years 1991 to 2014).
Plaintiff appealed the agency’s response. The agency upheld its “no records”
response on appeal. It is undisputed that plaintiff fully exhausted all administrative
remedies. It is undisputed that this Court has jurisdiction.
Defendant provided an affidavit dated May 4, 2017, by David P. Zanoni, Chief,
Requirements Analysis and Validation Branch, Risk Management Agency (Affidavit).
(Doc. 20-3, at 2-15). The Affidavit explains in significant detail the relationships between
the Federal Crop Insurance Corporation (FCIC), approved insurance providers, private
crop insurance agents, and the RMA, and RMA’s operation of the crop insurance
program. (Id., at 2-4). The Affidavit further explained the types of records RMA

A section is “a unit of measure under a rectangular survey system describing a tract of land
usually one square mile and usually containing approximately 640 acres.” (Doc. 20-3, at 9).
1

5

generates as a result of its operation regarding crop yields. (Id., at 4-5). Significantly,
it does not create records reflecting crop yields by section.
The Affidavit explained that RMA obtains some information from insurance
providers to ensure compliance with the Federal Crop Insurance Act, and that these
records contain personal identification information, such as names, addresses and Social
Security numbers of the insureds. (Id., at 5). The information is derived from documents
that belong to the insurance providers and not RMA. (Doc. 20-3, at 4). The Affidavit
further explained that RMA uses that information to populate a Comprehensive
Information Management System (CIMS), which is a system of computer programs and
databases used in administering the FCIC and Farm Service Agency programs. (Doc.
20-3, at 6). There is no information in CIMS, therefore, that is not otherwise held by
RMA. (Id.).
The Affidavit explained the search RMA undertook when it received plaintiff’s
FOIA request. RMA searched its Corporate Reporting Business Intelligence (CRBI)
database, a database it uses to construct data reports. (Doc. 20-3, at 8-9). Data reported
and collected in this database is not maintained in aggregate form and requires
development of a search algorithm to retrieve and aggregate the data. (Id., at 8). RMA
is not provided with production data by farm section, as plaintiff requested, and does not
maintain native records that would contain all of the production data by section. (Id.).
The Affidavit explained that some production data may be collected either as part of an
insurance claim or as part of a yield and production history; none of RMA’s databases
contain total production, acres harvested, and yield for corn and soybeans by section
within a county because RMA does not collect that data. (Id., at 8-9). The Affidavit
further explained that, to the extent RMA had any production data from production and
acreage reports, they typically would not “align in terms of land location,” meaning that
they would not correspond to sections because RMA began in 2010 to phase out the use
of sections as a land location identifier for such data. (Id., at 9). The Affidavit further
explained that the limited search results from the CRBI database would be misleading
6

because only if a claim of loss was filed could the agency even arguably match single
sections from past acreage reports to particular production reports. (Id., at 8-9). In the
Affidavit, defendant acknowledged that it did not search the CIMS database, explaining
that CIMS does not contain any additional crop insurance data that other systems
otherwise contain. (Id., at 5).
Despite these limitations, RMA “developed a specialized query to recreate the
circumstances that would allow the retrieval of records meeting” plaintiff’s request to
retrieve any data reported by section in the four townships where a loss claim was filed,
during the requested time period of 2012 to 2015. (Id., at 10). “The search returned
426 individual records (not individual producers).” (Id.). When the data was aggregated
by section, “the most records returned by section in the sample was 7 [per section]2,
which occurred once out of 1,152 opportunities (144 sections x 4 years, x 2 crops), and
the remainder of the records returned by section in the sample was fewer than 7” per
section. (Doc. 20-3, at 11).3
The Affidavit explained that defendant would be prohibited from disclosing these
results because of Exemption 3 of FOIA (as the limited results could be easily reverse
engineered to reveal the identity of the producers). (Doc. 20-3, at 12-14). Under
Exemption 3, 5 U.S.C. § 552(b)(3), a matter is “specifically exempted from disclosure
by statute.” According to the Affidavit, the governing statutes include Section 1502(c)
of the Federal Crop Insurance Act (see 7 U.S.C. § 1502(c)(2)(A) holding that agency
may only disclose to the public information provided by the producer if it “has been
transformed into a statistical or aggregate form that does not allow the identification of

The Affidavit explains that RMA has never developed and does not use data suppression rules
that would apply to the section level because it is so small (one square mile), and instead uses a
county as the lowest geographic aggregate. (Doc. 20-3, at 10).
2

3

The Affidavit notes that even these results would not accurately reflect the production, acres
and yield because, as previously explained, the data would only be collected when losses were
reported and only on the acres on which a farmer claimed losses. (Doc. 20-3, at 10).
7

the person who supplied particular information”), and Section 1619 of the Food,
Conservation, and Energy Act of 2008 (see 7 U.S.C. § 8791 (b)(2)(B)) (USDA shall not
disclose “geospatial information otherwise maintained by the Secretary about agricultural
land or operations [provided by an agricultural producer or owner of agricultural land in
order to participate in Department’s programs]”).
The Affidavit explained that RMA “employs data suppression techniques defining
the sufficient number of records to constitute ‘transformed into a statistical or aggregate
form that does not allow the identification of the person who supplied particular
information’ for the purposes of section 502(c) of the Federal Crop Insurance Act.”
(Doc. 20-3, at 11). RMA’s subject matter experts, “in consultation with other Federal
agencies . . . determined 15 records within a county to be a reasonable number of records
for crop insurance that would balance transparently providing data to the public while
ensuring statutory protections of producer provided information.” (Id., at 12.) The
Affidavit explains that RMA has never developed and does not use data suppression rules
that would apply to the section level because it is so small (one square mile), and instead
uses a county as the lowest geographic aggregate. (Id., at 11). Because the search
resulted in, at most, only 7 records per section (far fewer than would be required to
permit disclosure of data at the county level, which has a greater geographic size than a
section), RMA determined that disclosure of the information would permit identification
of producer information in violation of the Federal Crop Insurance Act and the Food,
Conservation, and Energy Act of 2008.
V.

ANALYSIS

A brief overview of FOIA may prove useful. The purpose of FOIA is to give the
public greater excess to governmental records. See Forsham v. Harris, 445 U.S. 169,
178 (1980) (“Congress undoubtedly sought to expand public rights of access to
Government information when it enacted the Freedom of Information Act, but that
expansion was a finite one.”); see also Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 150 (1980) (“The FOIA represents a carefully balanced scheme of
8

public rights and agency obligations designed to foster greater access to agency records
than existed prior to its enactment.”). Generally, all agency records are accessible under
FOIA. See Forsham, 445 U.S. at 178 (FOIA does not provide a definition of “agency
records”); see also DiViaio v. Kelley, 571 F.2d 538, 542 (10th Cir. 1978) (holding that
to define ‘records’ a court may rely on “a dictionary meaning of the word ‘record’ defined
as that which is written or transcribed to perpetuate knowledge or events”)).
There are, however, nine categorical exemptions of agency records that are
immune to a FOIA request under Section 552(b). These nine exemptions are “narrowly”
construed as to favor a policy of disclosure instead of secrecy. Miller. v. U.S. Dep’t of
Agric., 13 F.3d 260, 262 (8th Cir. 1993). An individual seeking right of access to records
under FOIA must “reasonably” describe the records requested. 5 U.S.C. § 552(a)(3)(A);
see Hudgins v. I.R.S., 620 F. Supp. 19, 21 (D. D.C. 1985) (FOIA request must be
“sufficiently detailed” so the agency employees could be reasonably expected to find the
requested documents) (citations omitted). When an “agency” improperly “withhold[s]”
its “agency records,” 5 U.S.C. § 552(a)(4)(B), a federal court with jurisdiction may
“order the production of any agency records improperly withheld from the complainant.”
A.

Plaintiff’s inadequacy-of-the-search claim

Plaintiff argues that defendant’s search was inadequate because it produced no
responsive documents. When confronted with an adequacy of search claim, federal
courts apply a “reasonableness” test to decide if the agency’s search methodology was
adequate. Campbell v. U.S. Dep’t. of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998).
Summary judgment for an agency is appropriate when the agency shows that “‘it
made a good faith effort to conduct a search for the requested records, using methods
which can be reasonably expected to produce the information requested.’” (Id. (quoting
Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990))); see also Miller,
779 F.2d at 1383 (“the agency must show beyond material doubt . . . that it has conducted
a search reasonably calculated to uncover all relevant documents . . . [T]he search need
only be reasonable; it does not have to be exhaustive.”) (internal quotation marks and
9

citations omitted). The agency does not have to “search every record system.” Oglesby,
920 F.2d at 68. The “reasonableness” inquiry considers many factors, inter alia, the
amount of staff and time that must be devoted to the search, as well as the other individual
facts of the case. Landmark Legal Found. v. E.P.A., 272 F. Supp. 2d 59, 63-64 (D.
D.C. 2003).
An agency can prove its search adequate with the submission of “reasonably
detailed, nonconclusory affidavits submitted in good faith” to the court. Id., at 62.
(quotation marks and internal citation omitted); see Miller, 779 F.2d at 1383 (same).
Such an affidavit is given great weight. Miller, 779 F.2d at 1383 & 1387 (holding that
the department’s affidavits sufficiently carried the department’s burden of proof and that
plaintiff made no showing that the affidavits were submitted in “bad faith.”). See also
Chamberlain v. U.S. Dep’t. of Justice, 957 F. Supp. 292, 294 (D. D.C. 1997) (“It is
well established that agency affidavits enjoy a presumption of good faith that withstand
purely speculative claims about the existence and discoverability of other documents.”)
(internal quotation marks and citation omitted).

To rebut the presumption that an

agency’s affidavit is in good faith, reliable at face value without additional inquiry, clear
evidence of bad faith is needed beyond a “purely speculative claim[ ] about the existence
and discoverability of other documents.” Physicians for Human Rights, 675 F. Supp.2d
at 159 (alteration in original) (internal quotation marks and citation omitted).
If the records leave “substantial doubt” as to the adequacy of the agency’s record
search, Campbell, 164 F.3d at 27, or in other words the agency’s search process was
“materially disputed on the record,” Miller, 779 F.2d at 1383, then summary judgment
is inappropriate. Such a material dispute may exist, for example, where a plaintiff can
show that “further search procedures were available without the [agency]’s having to
expend more than a reasonable effort.”). Miller, 779 F.2d at 1383.
1.

Defendant asserts no obligation to create new records under FOIA
request

It is well-established that “FOIA neither requires an agency to answer questions
10

disguised as a FOIA request, or to create documents or opinions in response to an
individual’s request for information.” Hudgins, 620 F. Supp. at 21 (citing N.L.R.B. v.
Sears, Roebuck and Co., 421 U.S. 132 (1975)) (internal citation omitted). See Forsham,
445 U.S. at 186 (“FOIA imposes no duty on the agency to create records. By ordering
[the agency] to exercise its right of access, we effectively would be compelling the agency
to “create” an agency record since prior to that exercise the record was not a record of
the agency.”); see Landmark Legal Foundation, 272 F. Supp.2d at 64 (no duty to create
new records); Kissinger, 445 U.S. at 152 (same); Hudgins, 620 F. Supp. at 21 (same).
Here, the record shows that RMA did not maintain records matching the
description of plaintiff’s request. Although it collected some information from records
of insurance companies on claims that would contain some of the information plaintiff
sought, it simply did not maintain records containing the precise information claimant
sought in his FOIA request. Defendant did not have an obligation under FOIA to create
records for plaintiff.
2.

Defendant’s Search for Documents Was Reasonably Calculated to
Uncover All Relevant Documents

“An agency fulfills its obligations under FOIA if it can demonstrate beyond
material doubt that its search was reasonably calculated to uncover all relevant
documents.” Fischer, 596 F. Supp.2d at 42 (internal quotation marks and citations
omitted). Here, defendant searched databases reasonably likely to hold information
responsive to plaintiff’s request. Defendant did not search the CIMS database, but
defendant established in its Affidavit that the CIMS database does not contain information
that is not maintained elsewhere in its system. The Affidavit is accorded a presumption
of good faith. Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2nd Cir. 1994). An
agency need not search every database, but, rather, only those reasonably calculated to
produce responsive information. Oglesby, 920 F.2d at 68.
If the agency shows it conducted a reasonable search, as it has here, the burden
shifts to plaintiff to show the agency did not act in good faith. Miller, 779 F.2d at 1383.
11

Plaintiff offered no evidence to contradict the Affidavit. Plaintiff argues that defendant
should have searched the CIMS database, but has made no showing to contradict the
Affidavit’s explanation that the CIMS database does not contain information that is
different from or in addition to the information contained elsewhere in RMA’s system.
The Court finds that defendant conducted a reasonable search in good faith.
Defendant found a limited number of records that were somewhat responsive to plaintiff’s
request. Even those records were misleadingly incomplete and inaccurate given the
manner in which the data was collected. As noted in the fact section above, RMA only
collected limited information about yields and only when insurance claims were made by
producers and only with respect to the portion of crops upon which claims were made.
As a result, this information, even if produced, would result in an inaccurate and
misleading representation of crop yields by section.
3.

Defendant asserts any responsive records are exempt under
Exemption 3 of FOIA

As previously noted, defendant did not have documents in existence that provided
the information plaintiff sought organized by section.

As further noted, defendant

nevertheless ran a database query in a good faith attempt to determine if it could produce
the information plaintiff sought, recognizing that the information would nevertheless be
incomplete and misleading. And, as noted in the prior section, defendant found a limited
number of records that were of limited responsiveness. The problem, however, is that
the records were so limited in number that disclosure of the information, even if it were
provided in aggregate form, would “allow the identification of the person who supplied
[the] particular information,” which is prohibited by statute. 7 U.S.C. § 1502(c)(2)(A).
Exemption 3 of FOIA protects matters specifically exempted from disclosure by statute.
5 U.S.C. § 552(b)(3).
Here, disclosure of these limited records would allow a third party to determine
the origin of the producer. Defendant explained in the Affidavit that it has determined
that aggregation of 15 records within a county is a reasonable number of records for crop
12

insurance that would balance transparently providing data to the public while ensuring
statutory protection of producer-provided information. The subject records here number,
at most, 7 records per section (and in most cases 1 or 2), a number low enough that, in
the Agency’s assessment, would permit a third party to reverse engineer the data to
identify the source of the information in violation of 7 U.S.C. § 1502(c)(1). The Court
finds that defendant’s assessment of the number of records necessary for aggregation in
a manner so as to prevent identification to be reasonable. Accordingly, release of these
records at the level requested by plaintiff would run afoul of the law and therefore fall
within Exemption 3.
Plaintiff argues that defendant must produce data in aggregate form, that aggregate
means two or more, and that, therefore, defendant must produce all data for two or more
producers. This argument substitutes a dictionary definition for the statutory requirement
that defendant aggregate data so as to prevent the identification of individual producers.
The Court also rejects plaintiff’s argument that the identity of the producer may not be
readily apparent because the producer may be operating under the name of a corporation
or other entity, and therefore disclosure of the information may not reveal the producer.
This is speculation. The Agency is charged by statute with protecting the identity of the
source of the information and to do so by releasing information in sufficiently aggregate
form to prevent identification. The Agency cannot count on the possibility of producers
operating under fictitious legal entities to prevent such identification.
B.

Plaintiff’s claim for attorneys’ fees and costs

Under Title 5, United States Code, Section 552(a)(4)(E)(i), a District Court may
“assess against the United States reasonable attorney fees and other litigation costs
reasonably incurred in any case under this section in which the complainant has
substantially prevailed.” Plaintiff seeks both (1) attorney fees and (2) other litigation
costs. A complainant has substantially prevailed under Section 552(a)(4)(E), if he “has
obtained relief through 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
13

the complainant’s claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). The Court
finds that plaintiff has not substantially prevailed and therefore is not entitled to attorneys’
fees or costs. See Simon v. Fed. Bureau of Prisons, 16-cv-00704-ADM-KMM, 2016
WL 5109543, *5 (D. Minn. Aug. 29, 2016), report and recommendation adopted, No.
0:16-CV-704-ADM-KMM, 2016 WL 5219582 (D. Minn. Sept. 20, 2016) (“Congress
amended § 552(a)(4)(E) through passage of the OPEN Government Act of 2007”); see
also Miller, 779 F.2d at 1389 (to substantially prevail does not necessarily mean that
plaintiff received a favorable judgment).
Although the Court need not address this matter further, the Court nevertheless
will address plaintiff’s claim that it is unconstitutional to award attorneys’ fees to
prevailing pro se attorney-litigants under Section 552(a)(4)(E), but not to prevailing pro
se non-attorney litigants. (Doc. 3, at 11-16). This point, however, is settled. Coolman
v. I.R.S., 1999 WL 675319, at *7 (W.D. Mo. July 12, 1999), aff’d, No. 99-3963WMSJ,
1999 WL 1419039 (8th Cir. Dec. 6, 1999) (“[S]ince plaintiff is a pro se litigant, he may
not recover attorney fees under the FOIA.”) See also Simon, 2016 WL 5109543, at *5,
(“[N]o real dispute between the parties that [plaintiff] cannot recover attorney’s fees
because he has litigated this [FOIA] case pro se.”). Other circuits agree. See Benavides
v. Bureau of Prisons, 993 F.2d 257, 259 (D.C. Cir. 1993) (holding that pro se nonattorney litigants are not eligible under FOIA for attorney’s fees).
VI.

CONCLUSION

For the reasons set forth above, the Court grants defendant’s motion for summary
judgement (Doc. 20). Judgment shall enter against the plaintiff.
IT IS SO ORDERED this 17th day of August, 2017.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa
14