Gahagan v. U.S. Citizenship and Immigration Services

Filing 46

ORDER & REASONS: ORDERED that Plaintiff's Second Motion for Attorneys' Fees and Costs (Rec. Doc. 42) is DENIED. Plaintiff's Motion for Leave to File Reply (Rec. Doc. 44) is DENIED as moot. Signed by Judge Carl Barbier on 11/4/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL GAHAGAN

CIVIL ACTION

VERSUS

NO: 14-1268

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES

SECTION: J(1)

ORDER & REASONS
Before the Court is a Second Motion for Attorneys' Fees and
Costs

(Rec.

Doc.

42)

filed

by

Plaintiff,

Michael

("Plaintiff"), as well as an Opposition (Rec. Doc.
Defendant,

United

("USCIS").

States

Having

submissions,

the

Citizenship

considered

record,

and

the
the

and

43) filed by

Immigration

motion,

applicable

Gahagan

the
law,

Services
parties’

the

Court

finds, for the reasons expressed below, that the motion should
be DENIED.
PROCEDURAL HISTORY AND BACKGROUND FACTS
Plaintiff
seeking

Michael

relief

under

Gahagan
the

brought

Freedom

of

suit

against

Information

Act

USCIS,
(FOIA).

(Rec. Doc. 1, at 1.) Plaintiff is an immigration attorney who
sought

the

release

of

immigration

records

pertaining

to

his

client. Id. Plaintiff alleged that he filed a FOIA request with
USCIS, requesting particular documents and information, and that
USCIS

failed

to

days. Id. at 5, 6.

respond

within

the

required

twenty

business

Approximately one month after Plaintiff filed suit, USCIS
released 436 pages of responsive documents. (Rec. Doc. 19.) Of
the 436 pages, 264 were released in their entirety, eighty were
released

in

part,

fifty-nine

were

withheld

under

FOIA

exemptions, and thirty-three were referred to Immigration and
Customs Enforcement (“ICE”). Because USCIS fulfilled Plaintiff’s
request, this Court denied his Motion for Summary Judgment (Rec.
Doc.

8)

Plaintiff

and

entered

subsequently

judgment
filed

for

his

USCIS.

First

(Rec.

Motion

Doc.

for

26.)

Attorneys’

Fees and Costs (Rec. Doc. 28), which this Court denied. (Rec.
Doc. 30.)
Plaintiff appealed the dismissal to the Court of Appeals
for the Fifth Circuit. (Rec. Doc. 31.) On appeal, he argued that
the thirty-three pages referred to ICE were improperly withheld.
(Rec. Doc. 36.) USCIS then filed a Motion to Supplement the
Record on Appeal, which the Fifth Circuit granted. Id. USCIS
filed

new

thirty-three

evidence
pages

showing
to

that

Plaintiff

ICE

with

released
minor

the

withheld

redactions.

(Rec.

Doc. 33.) Plaintiff challenged the redactions as unlawful and
claimed that neither USCIS nor ICE produced an affidavit or a
Vaughn Index explaining the claimed exemptions. (Rec. Doc. 36.)
The

Fifth

Circuit

vacated

the

decision

of

remanded the case for further proceedings. Id.

this

Court

and

On August 21, 2015, Plaintiff filed a Second Motion for
Summary Judgment (Rec. Doc. 34) in this Court, challenging the
Vaughn Index produced by ICE. On August 25, he filed a Third
Motion for Summary Judgment (Rec. Doc. 35), arguing that USICS’s
search for responsive records was inadequate. This Court denied
Plaintiff’s motions on September 11 (Rec. Doc. 40) and entered
judgment in favor of USCIS on September 22. (Rec. Doc. 41.) On
October 16, Plaintiff filed a Second Motion for Attorneys’ Fees
and Costs, requesting that this Court award him $59,113.19 in
attorney
opposed

fees
the

and

$1,440.69

motion

on

in

October

costs.
22.

(Rec.

(Rec.

Doc.

Doc.

43.)

42.)

USCIS

Plaintiff

filed a Motion for Leave to File Reply on October 28. (Rec. Doc.
44.)
PARTIES’ ARGUMENTS
Plaintiff

argues

that

he

is

eligible

for

an

award

of

attorneys' fees because he "substantially prevailed" in his FOIA
claim, as seen by USCIS's ultimate disclosure of the requested
documents,

and

that

he

is

also

entitled

to

such

an

award.

Plaintiff requests $59,113.19 in attorneys’ fees and contends
that the amount is reasonable. Plaintiff also seeks $1,440.69 in
costs.
In response, USCIS first argues that Plaintiff is neither
eligible to receive attorneys' fees because this Court issued a
judgment

against

him,

nor

is

he

entitled

to

them.

Moreover,

USCIS contends that the fees sought by Plaintiff are excessive
and unreasonable.
LEGAL STANDARD AND DISCUSSION
Because
Plaintiff’s
Court

quotes

the

instant

First

Motion

the

motion
for

following

is

substantively

Attorneys’

from

its

Fees

Order

and

and

similar
Costs,

Reasons

to
the

dated

September 30, 2014:

Under FOIA, a court "may assess against the United States
reasonable attorneys' fees and other litigation costs
reasonably incurred in any case . . . in which the
complainant has substantially prevailed." 5 U.S.C.A. §
552(a)(4)(E)(i); see State of Tex. v. I.C.C., 935 F.2d 728,
730 (5th Cir. 1991). The Fifth Circuit has developed a twostep
analysis
to
determine
when
such
an
award
is
appropriate. State of Tex., 935 F.2d at 730. First, under
the "eligibility" prong, the court considers whether the
plaintiff "substantially prevailed" in obtaining relief
through either a court order in his favor or a "voluntary
or unilateral change in position by the agency, if the
complainant's claim is not insubstantial." 5 U.S.C.A. §
552(a)(4)(E)(ii).
Second,
under
the
"entitlement"
prong,
the
court
"considers a variety of factors to determine whether the
plaintiff should receive fees."
Batton v. IRS, 718 F.3d
522, 525 (5th Cir. 2013). These factors include: "(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 Tex., 935 F.2d at 730.
Despite the fact that the Court has issued an order
dismissing Plaintiff's claims, Plaintiff contends that he
has substantially prevailed in his FOIA claim by causing
the USCIS ultimately to disclose his client's immigration
records, which he alleges amounts to
a "voluntary or
unilateral
change
in
position
by
the
agency."
In
4

determining
whether
a
plaintiff
has
substantially
prevailed, the Fifth Circuit applies the "catalyst theory,"
which requires a "showing that the prosecution of the
action could reasonably be regarded as necessary to obtain
the information and that the action had a substantive
causative effect on the delivery of the information."
Batton, 718 F.3d at 525. "It is not enough to merely allege
that because the documents were divulged after a lawsuit
was filed, said information was released as a result of
that suit." Arevalo-Franco v. I.N.S., 772 F. Supp. 959, 961
(W.D. Tex. 1991) (citing Cox v. U.S. Dept. of Justice, 601
F.2d 1, 7 (D.C. Cir. 1979)). Plaintiff asserts that USCIS's
release of Plaintiff's client's immigration records on July
8, 2014 was directly caused by Plaintiff's claim, and that
if Plaintiff had not pursued a cause of action against
USCIS, the records would never have been released. However,
Plaintiff has failed to show that the filing of his claim
was either necessary for or causative of USCIS's decision
to disclose the records.
Generally, when disclosure of records occurs as a result
of delayed administrative proceedings, rather than the
plaintiff's filing of a lawsuit, the causation requirement
of the catalyst theory is not met. Calypso Cargo Ltd. v.
U.S. Coast Guard, 850 F. Supp. 2d 1, 4 (D.D.C. 2011) ("If
rather than the threat of an adverse court order, 'an
unavoidable delay accompanied by due diligence in the
administrative process was the actual reason for the
agency's failure to respond to a request, then it cannot be
said the complainant substantially prevailed in [its]
suit.'”) (quoting Church of Scientology of Cal. v. Harris,
653 F.2d 584, 588 (D.C. Cir. 1981)). Moreover, when
plaintiffs in FOIA cases are aware that administrative
problems are causing the government to delay in disclosing
requested information, but pursue a FOIA lawsuit in spite
of this knowledge, "they are generally held not to have
prevailed when the administrative problems are overcome,
the information is produced, and the plaintiff is unable to
show that the lawsuit caused the production." ArevaloFranco, 772 F. Supp at 961.
USCIS received Plaintiff's FOIA request on May 2, 2014.
On the same date, USCIS notified Plaintiff that his request
would be handled on a "first-in, first-out basis," and that
due to the complexity of the request, it had been placed in
"track 2." (Rec. Doc. 1-4, at 2). The letter further
5

advised Plaintiff that he could "narrow [his] request to a
specific document in order to be eligible for the faster
track." (Rec. Doc. 1-4, at 2). Plaintiff does not dispute
these facts, nor does he contend that he took any action to
narrow his request in order to expedite the disclosure
process. Plaintiff further admits that he was aware of the
time delay in processing his request by noting that at the
time he filed his lawsuit, his request was number 5,020 out
of 12,386 FOIA requests pending with USCIS. (Rec. Doc. 281, at 3-4). Despite his knowledge of the administrative
problems experienced by USCIS, Plaintiff filed his claim on
June 2, 2014, exactly one month from the date he filed his
FOIA request. USCIS ultimately turned over the requested
documents on July 8, 2014, slightly more than two months
after the original FOIA request, and slightly more than one
month after Plaintiff commenced his lawsuit.
Plaintiff has presented no evidence to show that USCIS's
and ICE’s ultimate disclosure of the requested documents
resulted from the filing of his lawsuit, rather than merely
USCIS's ability to overcome administrative problems. As
noted by courts within the Fifth Circuit, "the attorney
fees provision of the FOIA was not meant to reward
plaintiffs who 'impatient with justifiable delays at the
administrative
level,
resort
to
the
"squeaky
wheel"
technique of prematurely filing suit in an effort to secure
preferential treatment.'" Arevalo-Franco, 772 F. Supp. at
961 (quoting Fund for Constitutional Govt. v. Nat'l
Archives, 656 F.2d 856, 971 (D.C. Cir. 1981)). Despite
Plaintiff's awareness of the backlog of requests with which
USCIS was dealing, and his failure to narrow his request to
expedite the disclosure process, Plaintiff chose to file
suit in this Court in an effort to avoid the necessary wait
time.
While the Court has sympathy for Plaintiff's
predicament
and
does
not
condone
USCIS's
delay
in
responding to FOIA requests, mere evidence of USCIS's
administrative burdens is not sufficient for Plaintiff to
prove that the filing of his lawsuit necessitated and
caused the ultimate disclosure of his client's records. 1 In
1

Plaintiff relies heavily on the case of Batton v. I.R.S. in which the Fifth
Circuit found the plaintiff's FOIA lawsuit had a "substantially causative
impact" on the eventual release of his sought records. 718 F.3d 522, 526 (5th
Cir. 2013). However, in Batton, the plaintiff filed a FOIA claim only after
the I.R.S. "failed to produce a single document or take any other action" for
over a year from his original request. Id. Here, Plaintiff waited only one
month before filing a claim, despite being aware of USCIS's administrative

6

light of Plaintiff's failure to satisfy the catalyst theory
as well as the fact that a court order was issued against
Plaintiff,
Plaintiff
has
failed
to
show
that
he
"substantially prevailed" in his lawsuit, and thus is not
entitled to attorneys' fees. 2
(Rec. Doc. 30, at 3-7.)
For

the

reasons

described

above,

this

Court

finds

that

Plaintiff is still not entitled to attorneys’ fees and costs.
USCIS did not provide Plaintiff with any new documents following
the appeal. ICE released the thirty-three pages referred to it
on

November

24,

2014,

but

Plaintiff

cannot

show

that

this

release was the result of his appeal. (See Rec. Doc. 43, at 2.)
Rather, the delay can be easily attributed to the referral from
USCIS, which was in turn delayed because of an administrative
backlog.
Further, Plaintiff argues that he was forced to file second
and third Motions for Summary Judgment in order to receive a
Vaughn Index after his case was remanded to this Court. This is
patently untrue. This Court previously found that ICE released a
proper Vaughn Index when it provided responsive documents to
Plaintiff in November 2014. (See Rec. Doc. 40, at 12-13.) Thus,

backlog. As such, the Court does not find Batton to be analogous to the facts
at hand.
2

In light of the fact that the Court has concluded Plaintiff is not eligible
to recover an award of attorneys' fees, the Court finds is unnecessary to
determine whether he may be entitled to such an award.

7

the filing of those motions did not trigger the release of the
Vaughn Index because ICE had already provided an index.
Because

Plaintiff

failed

to

show

that

he

“substantially

prevailed” in his lawsuit against USCIS, he is not eligible to
receive attorneys’ fees and costs. Thus, it is unnecessary for
this

Court

to

consider

whether

Plaintiff

is

entitled

to

attorneys’ fees and whether those fees are reasonable.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Second Motion for
Attorneys' Fees and Costs (Rec. Doc. 42) is DENIED. Plaintiff’s
Motion for Leave to File Reply (Rec. Doc. 44) is DENIED as moot.
New Orleans, Louisiana this 4th day of November, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

8