Tchefuncta Club Estates, Inc. v. United States Army Corps of Engineers

Filing 37

ORDER AND REASONS denying 29 Motion for Attorney Fees and litigation costs. Signed by Judge Lance M Africk. (cms, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TCHEFUNCTA CLUB ESTATES

CIVIL ACTION

VERSUS

No. 10-1637

UNITED STATES ARMY CORPS OF
ENGINEERS

SECTION I

ORDER AND REASONS
Before the Court is a motion1 for award of attorney fees and litigation costs filed by
plaintiff, Tchefuncta Club Estates (“Tchefuncta”). Defendant, United States Army Corps of
Engineers (the “USACE”), opposes2 the motion. For the following reasons, plaintiff’s motion is
DENIED.

BACKGROUND
This case arises out of two requests issued by plaintiff to the USACE on March 10, 2010,
pursuant to the Freedom of Information Act, 5 U.S.C. § 522 (“FOIA”).3 Plaintiff’s FOIA
requests sought documents concerning the applications for permits filed by two separate entities,
River Club and Maurmont Properties (“Maurmont”). Specifically, plaintiff sought what is
referred to as a “needs analysis” for each application.4

1

R. Doc. No. 29.
R. Doc. No. 32.
3
R. Doc. No. 1.
4
R. Doc. No. 1.
2

1

The USACE located the responsive documents for each request, but the USACE
determined that the material fell within FOIA Exemption 4.5 The USACE contacted River Club
and Maurmont to describe plaintiff’s FOIA requests and both applicants objected to release of
the material: the applicants claimed that the material contained trade secrets and/or proprietary
confidential information.6 After administratively appealing the USACE’s denial of the FOIA
requests, plaintiff filed its complaint in this case.7
Subsequently, the permit applied for by Maurmont was approved and issued to the
applicant.8 Upon issuing the permit to Maurmont, the application, including the needs analysis,
became public record.9 The USACE then released the Maurmont material, including the needs
analysis section, to plaintiff with certain portions redacted pursuant to FOIA Exemption 6.10 The
USACE has also turned over the River Club application. However, to date, the needs analysis
section of the River Club application remains redacted as USACE continues to invoke FOIA
Exemption 4.11 Plaintiff now moves for an award of attorney fees and litigation costs arguing
that it has substantially prevailed in this captioned proceeding as a result of a voluntary and
unilateral change in position by defendant.

LAW & ANALYSIS
FOIA provides that government agencies “shall make available to the public” certain
information upon a proper request. 5 U.S.C. § 552(a)(1). Under FOIA, the Court may assess
“reasonable attorney's fees and other litigation costs reasonably incurred in any case … in which
5

R. Doc. No. 25-2, p.2.
Id.
7
R. Doc. No. 1, p.4.
8
R. Doc. No. 25-3, p.3.
9
Id.
10
Id.
11
Id.
6

2

the complainant has substantially prevailed.” Brayton v. Office of U.S. Trade Representative,
657 F.Supp.2d 138, 141 (D.D.C. 2009). A prevailing party must demonstrate both eligibility and
entitlement for an award of attorney's fees. Id.
In order to be “eligible” for an award of attorney’s fees, the claimant must have
“substantially prevailed” in the underlying FOIA litigation. Id. A party substantially prevails if
he “has obtained relief through either … a judicial order, or an enforceable written agreement or
consent decree[,] or … a voluntary or unilateral change in position by the agency, if the
complainant’s claim is not insubstantial.” Id.; 5 U.S.C. § 552(a)(4)(E)(ii).
Second, the Court must determine whether the plaintiff is “entitled” to an award of
attorney’s fees and costs. In deciding whether a claimant is entitled to an award, the Court
considers four factors: “(1) the benefit to the public deriving 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.” State of
Texas v. I.C.C., 935 F.2d 728, 730 (5th Cir. 1991); see also Weisberg v. U.S., 745 F.2d 1476,
1498 (D.C. Cir. 1984). Although the entitlement analysis typically involves the balancing of
four factors, a party is not entitled to fees if the government’s legal basis for withholding
requested records is correct. Chesapeake Bay Found., Inc. v. U.S. Dep’t of Agric., 11 F.3d 211,
216 (D.C. Cir. 1993).
In this case, plaintiff has failed to demonstrate a “change in position” by the USACE.
The fact that plaintiff received some of its requested documents following a change in
circumstances does not evidence a change in position by the agency. From the outset, the
USACE has maintained that pursuant to FOIA Exemption 4, prior to the issuance of a permit, it
will not release the needs analysis sections which, according to the applicants’ objections,

3

contain trade secrets and/or proprietary confidential information. The USACE has further
maintained that upon the issuing of a permit, the application, including the needs analysis
section, becomes a public record and FOIA Exemption 4 becomes moot.
The USACE followed this procedure with respect to the Maurmont application: the
requested material was withheld pursuant to FOIA Exemption 4 until a permit had been issued,
at which point the material was disclosed as a public record.12 Furthermore, the USACE
continues to follow this procedure with respect to the River Club application: the requested
material was withheld pursuant to FOIA Exemption 4 and it has not been disclosed because a
permit has not been issued.13 Since plaintiff is unable to show a change in position by the
agency, plaintiff is not eligible for an award of attorney’s fees.14
For the foregoing reasons,
IT IS ORDERED that plaintiff’s motion for an award of attorney fees and litigation
costs is DENIED.

New Orleans, Louisiana, May 24, 2011.

___________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

12

R. Doc. No. 25-3, p.2.
Id.
14
Since the Court finds that plaintiff is ineligible for an award of attorney’s fees, the Court does not address whether
plaintiff is entitled to an award of attorney’s fees.
13

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