Hertz Schram PC et al v. Federal Bureau of Investigation

Filing 57

OPINION and ORDER (1) Overruling Plaintiff's Objections 54 , (2) Accepting the Recommendation Contained in the Magistrate Judge's Report and Recommendation 53 , and (3) Denying Plaintiff's Motion for Attorney Fees 47 . Signed by District Judge Mark A. Goldsmith. (CHad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HERTZ SCHRAM PC,
Plaintiff,

Civil Action No. 12-CV-14234
HON. MARK A. GOLDSMITH

vs.
FEDERAL BUREAU OF
INVESTIGATION,
Defendant.
_______________________________/

OPINION AND ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS
(Dkt. 54), (2) ACCEPTING THE RECOMMENDATION CONTAINED IN THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (Dkt. 53), AND
(3) DENYING PLAINTIFF’S MOTION FOR ATTORNEY FEES (Dkt. 47)
I. INTRODUCTION
Before the Court is Chief Magistrate Judge R. Steven Whalen’s Report and
Recommendation (“R&R”) (Dkt. 53) regarding Plaintiff Hertz Schram PC’s (“Hertz Schram”)
motion for attorney fees (Dkt. 47) pursuant to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. The Magistrate Judge recommended denying Plaintiff’s motion for attorney fees,
and Plaintiff filed objections to that recommendation (Dkt. 54). Defendant filed a response (Dkt.
55) to which Plaintiff filed a reply (Dkt. 56). For the reasons described below, the Court
overrules Plaintiff’s objections, accepts the recommendation contained in the Magistrate Judge’s
R&R, and denies Plaintiff’s motion for attorney fees.1

1

The factual and procedural background of this case is adequately set forth in the Magistrate
Judge’s R&R. See R&R at 1-3. Therefore, it need not be repeated here. To the extent Plaintiff
challenges the factual background provided by the Magistrate Judge, the Court addresses such
challenges in the body of this decision.
1

II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 54, the Court “may refer a motion for
attorney’s fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.”
Fed. R. Civ. P. 54(d)(2)(D). The Court reviews de novo those portions of the R&R to which a
specific objection has been made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
III. ANALYSIS
A. Applicable Law
FOIA permits courts to assess reasonable attorney fees and litigation costs against the
United States where a plaintiff suing under FOIA has “substantially prevailed.”

5 U.S.C.

§ 552(a)(4)(E)(i). A FOIA plaintiff “substantially prevails” where it “obtain[s] 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 the complainant’s claim is not
insubstantial.” Id. § 552(a)(4)(E)(ii). Courts apply a two-part test in determining whether an
award of fees is appropriate. GMRI, Inc. v. E.E.O.C., 149 F.3d 449, 451 (6th Cir. 1998). First,
courts must determine whether a litigant has substantially prevailed and is thus “eligible” for
attorney fees in the first instance. Id. A court order is not necessary for a litigant to have
substantially prevailed “if it demonstrates that the prosecution of the lawsuit was reasonably
necessary to obtain requested information, and that the existence of the lawsuit had a causative
effect upon the release of that information.” Id. at 451-452.2
2

It appears that a subsequent Supreme Court decision, Buckhannon Bd. & Care Home, Inc. v.
West Virginia, 532 U.S. 598 (2001), may have rejected this “catalyst” theory as applied to
federal fee-shifting statutes, such as FOIA. See AutoAlliance Int’l, Inc. v. U.S. Customs Serv.,
300 F. Supp. 2d 509, 513 (E.D. Mich. 2004). However, FOIA was amended in 2007 to include
the second definition of “substantially prevailed,” where an agency unilaterally changes its
position or voluntarily complies with the request. See Warren v. Colvin, 744 F.3d 841, 844-845
(2d Cir. 2014). In light of this amendment, the Sixth Circuit’s “catalyst” theory appears to
remain relevant.
2

Second, if a FOIA plaintiff is eligible for fees, courts must then determine whether the
plaintiff is “entitled” to such an award based upon a balancing of equitable considerations.
GMRI, 149 F.3d at 451. Courts consider the following three factors in determining whether a
FOIA plaintiff is entitled to fees and costs: “the benefit to the public deriving from the case; the
commercial benefit to the complainant and the nature of its interest in the records; and whether
the agency’s withholding had a reasonable basis in law.” Detroit Free Press, Inc. v. Dep’t of
Justice, 73 F.3d 93, 98 (6th Cir. 1996) (quoting Am. Commercial Barge Lines Co. v. N.L.R.B.,
758 F.2d 1109, 1111 (6th Cir. 1985)). Whether a prevailing party is entitled to attorney fees lies
within the sound discretion of the court. GMRI, 149 F.3d at 452.
B. The Parties’ Arguments
In its motion, Plaintiff contends that it is eligible for attorney fees because it substantially
prevailed in the instant litigation, and that it is entitled to such fees under a proper consideration
of the appropriate equitable factors.

Specifically, Plaintiff argues that, “this lawsuit was

reasonably necessary to obtain the information requested in Plaintiff’s FOIA request because
there was no indication that Defendant intended to respond to Plaintiff’s FOIA request in a
manner compliant with the FOIA.” Pl. Mot. at 5-6. In support, Plaintiff asserts that the FBI
failed to comply with FOIA in the time and manner prescribed by the statute, and that the FBI
did not provide any type of substantive response until after the lawsuit was filed, suggesting that
the lawsuit had a causative effect on the FBI’s search and release of responsive records. Id. at 67. Plaintiff further argues that the equitable factors weigh in favor of an award because: (i) the
litigation benefited the public interest insofar as unreasonably delaying the release of documents
harms the public interest generally, and the request was made in connection with a lawsuit on
behalf of “Juggalos,” a group of individuals allegedly harmed by the FBI’s classification of the

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group as a gang; (ii) Plaintiff has no commercial interest in the information sought because the
information “was not intended to be sold or used for any other overt purpose” other than its
litigation on behalf of “Juggalos”; and (iii) the FBI offered no explanation for why it failed to
respond to Plaintiff’s FOIA request within the 20-day statutory period and, therefore, “[t]here is
no reasonable basis for the FBI’s delay in producing the requested documents.” Id. at 8-10.
Defendant makes a number of arguments in response, including a threshold assertion that
a law firm representing itself in FOIA litigation cannot qualify for an award of fees. Def. Resp.
to Pl. Mot. at 6-9 (Dkt. 49). Defendant further disputes that Plaintiff has substantially prevailed
in the litigation, contending that Plaintiff prematurely filed suit before the expiration of the 20day statutory period. Id. at 11-12. Defendant also states, and files an affidavit in support, that
Plaintiff’s FOIA request was processed according to the agency’s routine administrative
processing procedure; consequently, the lawsuit cannot be said to have caused Defendant to have
“voluntarily or unilaterally change[d] its position.” Id. at 12-13. Defendant attributes any delay
in responding to Plaintiff’s request, or in releasing responsive documents, to the administrative
process of searching for, identifying, and reviewing potentially responsive records. Id. at 13-14.
Finally, Defendant asserts that the equitable factors weigh against an award of fees because:
(i) in responding to Plaintiff’s request the agency did not engage in bad faith, and the information
requested was primarily for the benefit of private litigants, was not the type of information the
public would rely on in making political choices, and was largely public-source material; (ii) the
request had a commercial purpose — primarily as a means of discovery in connection with
litigation pursued by Plaintiff on behalf of its own clients — and Plaintiff had a private incentive
to litigate the suit in the absence of an award of fees; and (iii) the FBI responded reasonably to

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the request in processing it according to standard procedures and withholding only those
documents as authorized by statutory exemption. Id. at 15-23.
Upon reviewing the parties’ arguments, the Magistrate Judge recommended denying
Plaintiff’s motion. While the Magistrate Judge found that Plaintiff’s representation by members
of its own firm does not preclude an award of fees, the Magistrate Judge ultimately concluded
that Plaintiff failed to show that it substantially prevailed in the litigation, and that the equitable
factors did not support an entitlement to fees.

Specifically, the R&R states that Plaintiff

improperly computed time under the statute and, therefore, prematurely filed its lawsuit within
the statutory timeframe allotted for the FBI’s response. R&R at 10. The R&R further observed
that, by the time the FBI received notice of the lawsuit, the FBI had already informed Plaintiff
that it was processing the request according to its standard protocol.

Id. at 10-11.

The

Magistrate Judge found that these facts undermined Plaintiff’s argument that the lawsuit was
“reasonably necessary” to obtain a response to its request. Id. at 11. The Magistrate Judge
further found any causative connection between the lawsuit and the FBI’s response lacking
because the FBI began processing the request before it learned of the lawsuit and because any
delays in response and/or production were associated with high volumes of requests coupled
with the established “first-in, first-out” protocol. Id. at 12-13.
The Magistrate Judge also found it significant that Plaintiff did not receive any additional
documents related to its request in opposing Defendant’s first motion for summary judgment, id.
at 13-14, and that Defendant’s position in its second such motion was essentially a “clarification”
of its original, and ultimately successful, position, id. at 14-15. Accordingly, the Magistrate
Judge found that the lawsuit did not effect a change in the FBI’s position. Id. at 15.

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Lastly, the Magistrate Judge opined that the equitable factors did not warrant an award of
fees because: (i) Plaintiff prematurely filed suit and the FBI did not behave unreasonably in
response to Plaintiff’s request; (ii) Plaintiff’s motivation for the request was chiefly commercial,
in that it was made in connection with a lawsuit pursued on behalf of clients; and (iii) the FBI
offered a reasonable explanation for the delay associated with its production of responsive
documents, and it had a reasonable basis in law for withholding certain documents, as evidenced
by the Court’s partial grant of Defendant’s first motion for summary judgment. Id. at 15-18.
Plaintiff now objects to the Magistrate Judge’s recommendation, primarily on the basis
that the Magistrate Judge erroneously calculated the 20-day statutory time period from the date
of the FBI’s acknowledgement of receipt of the request — not from the date of actual receipt, as
required by the statute. Pl. Obj. at 2-3. Accordingly, Plaintiff maintains that the lawsuit was not
filed prematurely, and that the FBI did fail to respond to Plaintiff’s request in a timely manner.
Id. at 2-3, 3-4. Plaintiff continues that, because there was no indication that the FBI intended to
comply with its obligations under the statute, the lawsuit was reasonably necessary to obtain the
requested information. Id. at 3-4. Plaintiff further argues that the lawsuit provoked the FBI’s
compliance with the statute, as evidenced by the FBI’s failure to produce documents until after
the lawsuit was filed, and by the Court’s initial finding that the FBI’s search was not reasonably
tailored to Plaintiff’s request. Id. at 4-5.
Plaintiff additionally objects to the Magistrate Judge’s application of the equitable
factors. Plaintiff claims that because its suit was not premature, the lawsuit did vindicate the
public’s interest in FOIA. Id. at 5-6; Pl. Mot. at 8-9. Plaintiff also relies on its earlier assertion
that the information was related to a separate lawsuit commenced on behalf of individuals
allegedly harmed by the FBI’s “gang” designation. Pl. Mot. at 9. Plaintiff further asserts that it

6

does not have a commercial interest in the request because the related lawsuit seeks only an
injunction — a form of equitable relief — on behalf of the public, specifically those individuals
that identify as “Juggalos.” Pl. Obj. at 6.3 Finally, Plaintiff argues that Defendant has failed to
explain why it waited more than the 20 days allowed by the statute to respond to Plaintiff’s
request; as such, there is no reasonable basis for the FBI’s delay in producing the requested
documents. Id. at 7.
In response to Plaintiff’s objections, Defendant argues that Plaintiff waived the argument
that its lawsuit was not premature by failing to present such an argument to the Magistrate Judge,
noting that Plaintiff failed to address this argument in its reply brief. Def. Resp. to Pl. Obj. at 23.4 Defendant also argues that even if Plaintiff’s lawsuit was not premature, Plaintiff still cannot
show that the lawsuit was reasonably necessary to obtain the requested information, because the
FBI had already begun processing the request according to established protocol at the time
Plaintiff filed suit, and any subsequent delay was the result of identifying and reviewing
responsive records. Id. at 4-5. Defendant distinguishes the present circumstances from the case
on which Plaintiff relies, Miller v. U.S. Dep’t of State, 779 F.2d 1378 (8th Cir. 1985), on the
grounds that the Miller plaintiff waited almost a year before filing suit and contacted the agency
numerous times about the status of his request beforehand, whereas here, Plaintiff anticipated
filing suit prior to the expiration of the statutory period, without ever contacting the FBI as to the
3

Plaintiff further points out that even if it was to receive a commercial benefit as a result of the
instant litigation, no single equitable factor is dispositive and the remaining factors weigh in
favor of an award of fees. Pl. Obj. at 6.

4

In its reply in support of its objections, Plaintiff asserts it did present this argument to the
Magistrate Judge, because it “provided all of the relevant dates to the magistrate to determine
whether this suit was timely filed; therefore, this issue was not waived.” Pl. Reply at 2. Plaintiff
also continues to quarrel with Defendant over how many days, precisely, passed from the time of
receipt of the request to acknowledgment of the request, and on what day beyond the 20-day
statutory time period Plaintiff actually filed suit. See id. at 2-3.
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status of Plaintiff’s request. Def. Resp. to Pl. Obj. at 5. Defendant asserts that it also fully
complied with its FOIA obligations well before the agency in Miller. Id. at 5-6. Defendant also
relies on the fact that Plaintiff did not receive any additional documents as a result of the
litigation, noting that Defendant did not perform additional searches, but, rather, merely
elaborated on its initial search protocol. Id. at 6.
Finally, Defendant disputes that the Magistrate Judge relied exclusively on the timing of
Plaintiff’s lawsuit in finding that Plaintiff was not entitled to attorney fees under the equitable
factors. Id. Instead, Defendant contends that the Magistrate Judge properly found that the FBI
responded reasonably to Plaintiff’s request, that Plaintiff had sufficient private incentive to
litigate its suit, and that any delay in producing the requested documents was the result of routine
administrative delay. Id. at 6-7.5
B. Discussion
The Court reviews Plaintiff’s request for fees under the statute in the two-step manner
prescribed by the Sixth Circuit. As described below, the Court finds that Plaintiff has failed to
satisfy either prong of the analysis: it is neither eligible for attorney fees, nor is it entitled to
attorney fees.
1. Eligibility for fees
The Court agrees with Plaintiff that the statute calculates the 20-day response period from
the date of “the receipt” of the request, and not from the date an agency acknowledges receipt.
See 5 U.S.C. § 552(a)(6)(A)(ii) (“The 20-day period . . . shall commence on the date on which
the request is first received by the appropriate component of the agency . . . .”). Plaintiff’s FOIA
5

Defendant further observes that Plaintiff’s two-page reply brief to Defendant’s response
addressed only Defendant’s argument that Plaintiff was ineligible for fees due to its status as a
law firm. Def. Resp. to Pl. Obj. at 3.
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request was submitted by email on August 24, 2012, making it received by the agency on the
same date. See id. According to the Court’s calculations, 20 days from August 24, 2012,
excluding weekends and legal holidays, id. § 552(a)(6)(A)(i), expired at the close of business on
September 21, 2012. Therefore, it appears that Plaintiff’s suit, filed on September 25, 2012, was
not premature.
The Court rejects Defendant’s argument on waiver. In its motion for attorney fees,
Plaintiff argued that the FBI failed to advise Plaintiff within the 20 days required by statute
whether it would comply with Plaintiff’s request. Pl. Mot. at 6. This was sufficient to put the
Defendant on notice, and alert the Magistrate Judge, as well, that Plaintiff was contending that its
lawsuit was not premature.
Nonetheless, Plaintiff has failed to demonstrate that the litigation was reasonably
necessary to obtain a response, or otherwise had a causative effect on the FBI’s release of
documents. Nor has Plaintiff shown that the lawsuit elicited a voluntary or unilateral change in
the FBI’s position with respect to the request.
Plaintiff places a great deal of emphasis on the fact that the FBI sent a letter informing
Plaintiff that it was searching its central records for responsive material on the same date that
Plaintiff filed its complaint, in addition to the fact that both of the FBI’s productions occurred
while the lawsuit was pending. See Pl. Obj. at 4-5. However, as Defendant observes, the mere
sequence of events is not sufficient to establish that the lawsuit was the triggering agent for the
FBI’s response. See Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984)
(“[T]he mere filing of the complaint and the subsequent release of the documents is insufficient
to establish causation.”).

9

According to the declaration of David M. Hardy, a high volume of requests, amounting to
an almost 35% increase from the previous year, caused a backlog. See Second Hardy Decl., Ex.
1 to Def. Resp. to Pl. Mot., ¶ 5 (Dkt. 49-1).6 This backlog, coupled with the FBI’s “first-in, firstout” procedure for responding to FOIA requests, resulted in delays in the FBI’s response time.
Id.7 A failure to comply strictly with the statutory deadlines, especially where the delay is
attributed to the administrative processing of the request, does not necessarily mean that a
lawsuit is necessary to obtain the requested information. See Simon v. United States, 587 F.
Supp. 1029, 1031-1032 (D.D.C. 1984). And here, the delay in the agency’s first substantive
response to Plaintiff — a letter stating that it was searching its records for responsive material —
was a minimal one, just two business days after an official response was due.
The declaration also makes clear that the FBI was processing Plaintiff’s request at the
time Plaintiff filed its complaint; specifically, the agency had received and perfected the request
and was in the process of searching for and collecting potentially responsive material. Second
Hardy Decl. ¶¶ 6-7; compare with Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 811
F. Supp. 2d 216, 232-233 (D.D.C. 2011) (finding litigation prompted production where agency
did not claim to have conducted substantive searches for responsive documents prior to the
lawsuit). And while Plaintiff refers to the fact that the FBI’s letter stating that it was searching
its records was authored on the same day Plaintiff filed its complaint to suggest that the filing of
6

According to the declaration, David M. Hardy is the Section Chief of the Record/Information
Dissemination Section, Records Management Division within the FBI, and has held that position
since August 1, 2002. Second Hardy Decl. ¶ 1. In this position, Mr. Hardy supervises a group
whose “collective mission is to effectively plan, develop, direct, and manage responses to
requests for access to [FBI] records and information pursuant to the FOIA.” Id. ¶ 2. Mr. Hardy
states that he is “familiar with the procedures followed by the FBI in responding to requests for
information,” and is aware of the treatment afforded to Plaintiff’s FOIA request. Id. ¶ 3.
7

Plaintiff has not challenged or contested any of the facts set forth in the declaration, nor has it
presented any countervailing evidence; therefore, the Court accepts the facts in the declaration as
stated therein.
10

the complaint prompted that letter, the force of Plaintiff’s suggestion is undercut by the fact that
the letter was sent approximately a week before the agency section that had begun conducting
the search — the Record/Information Dissemination Section — had learned of Plaintiff’s
lawsuit. See Second Hardy Decl. ¶ 7.
According to the Hardy Declaration, the FBI continued to process Plaintiff’s request
pursuant to established protocols after it learned of the lawsuit, until all responsive records had
been found and reviewed, and non-exempt records had been released. Id. ¶ 8. An interim
production was released approximately two months after the agency learned of the lawsuit, and a
final production was made less than two months after that. See Pl. Obj. at 4. The declaration
attributes the subsequent delay in production to the time required to identify the documents,
review the documents line by line for protected information, and to redact all exempt
information. Hardy Decl. ¶ 8. Accordingly, the lag in the FBI’s response time appears to be the
product of administrative delay that is routinely associated with bureaucratic processes and
procedures; there is no suggestion that the FBI was intentionally resisting or obstructing
Plaintiff’s request.
In sum, the Court finds that the FBI’s delay in providing an initial response to Plaintiff
does not suggest that the agency was shirking its responsibilities under the statute. Indeed, this
initial response indicates not only that the agency was processing the request, but that it was also
keeping Plaintiff abreast of the agency’s progress with respect to that request. Moreover, the
Court finds that the length of time preceding the FBI’s production of responsive material to be
reasonable. See Lovell v. Dep’t of Justice, 589 F. Supp. 150, 154 (D.D.C. 1984) (nearly threeyear delay adequately explained by processing of requests in chronological order and large
number of requests, especially given that the first step in processing had been completed prior to

11

filing of lawsuit); Crooker v. Fed. Bureau of Prisons, 579 F. Supp. 309, 311-312 (D.D.C. 1984)
(holding plaintiff did not substantially prevail, despite six-month delay in production caused by
transfer of request to regional office for search of records, large number of similar requests, and
very limited resources).
This is simply not the type of case where it appears that the requestor had no choice but
to file a lawsuit in order to receive a satisfactory response from the defendant agency. E.g. Dixie
Fuel Co. v. Callahan, 136 F. Supp. 2d 659, 663-664 (E.D. Ky. 2001) (finding that lawsuit was
reasonably necessary where plaintiff filed suit eight months after initial request, because agency
inaction gave plaintiff no reasonable assurance that the request would be answered); Ellis v.
United States, 941 F. Supp. 1068, 1077-1078 (D. Utah 1996) (holding that plaintiff’s persistence
in litigating claim was necessary to obtain information, as evidenced by four-month delay for
agency’s “final response” and agency’s continued productions six and eight months after
litigation commenced); Ettlinger v. F.B.I., 596 F. Supp. 867, 879 (D. Mass. 1984) (finding that
lawsuit was necessary where initial FOIA and fee waiver request went unanswered for more than
18 months before plaintiff filed suit); Marschner v. Dep’t of State, Sec’y of State, 470 F. Supp.
196, 199-200 (D. Conn. 1979) (holding that plaintiff substantially prevailed in a lawsuit filed
four months after initial request, where agency did not respond to request prior to disclosure,
which was not made until three months after complaint was filed, and provided no explanation
for the delay); Deininger & Wingfield, P.A. v. I.R.S., No. 4:08CV00500JLH, 2009 WL 2241569,
at *4 (E.D. Ark. July 24, 2009) (finding a causal connection between lawsuit and disclosure
where agency, for almost a year, repeatedly gave anticipated dates for production only to renege
without explanation, but produced documents relatively quickly following filing of complaint).

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Here, there is no indication that the agency’s response would have been any different in
the absence of the lawsuit. See Maynard v. C.I.A., 986 F.2d 547, 568 (1st Cir. 1993) (“[P]laintiff
presented no evidence suggesting that this litigation was necessary to obtain requested
information or that the litigation caused the agency to produce the information.”). Accordingly,
the Court concludes that Plaintiff’s lawsuit was not reasonably necessary to obtain the requested
information, or to obtain the FBI’s compliance with the statute. See Weisberg, 745 F.2d at 14961497 (vacating district court’s finding that plaintiff substantially prevailed, because it was not
clear whether the lawsuit caused the agency to release the documents or whether the release was
made pursuant to the administrative processing of the request). Plaintiff, therefore, cannot be
said to have “substantially prevailed” on this basis.
Furthermore, there is no evidence that the agency ever changed its position with respect
to Plaintiff’s FOIA request, let alone that it did so either because of Plaintiff’s lawsuit or because
of Plaintiff’s opposition to Defendant’s motion for summary judgment. While Plaintiff relies on
the fact that the Court denied Defendant’s motion for summary judgment, in part, because it was
unclear whether the FBI’s search was reasonably tailored to Plaintiff’s request, Defendant’s
second motion for summary judgment, and the Court’s Opinion granting that motion, make clear
that the FBI did not change its position, but, rather, provided additional, and more detailed,
information about its search for the material that allowed the Court to conclude that the initial
search was sufficient under the statute. See 11/5/2014 Op. & Order at 4-5, 8-9 (Dkt. 45). At
bottom, nothing about Plaintiff’s lawsuit had a causative effect on the FBI.8

8

Notably, Plaintiff did not challenge any of the statutory exemptions under which the FBI
withheld certain documents, and those exemptions were subsequently found appropriate by the
Court. See 2/25/2014 Op. & Order at 17 (Dkt. 33). This is consistent with the Court’s
conclusion that the FBI acted reasonably in connection with the FOIA request.
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Accordingly, because Plaintiff did not show that it “substantially prevailed” in its
request, the Court finds that Plaintiff is not eligible for attorney fees under the statute.
2. Entitlement to fees
Even if Plaintiff were eligible for attorney fees for having “substantially prevailed” in this
lawsuit, the Court agrees with the Magistrate Judge and Defendant that the equitable factors do
not support an entitlement to fees.
Plaintiff argues that the Magistrate Judge’s conclusion that the lawsuit did not benefit the
public was based on the erroneous assumption that Plaintiff’s lawsuit was premature. Pl. Obj. at
5. However, the Magistrate Judge also distinguished the cases on which Plaintiff relied for the
proposition that the release of records vindicates the public’s general interest in FOIA. R&R at
16. Specifically, those cases involved protracted delay and litigation before the agency would
release the records, but here the records were released within a relatively short period, and the
agency did not behave unreasonably in responding to the request in the first instance. Id. The
Court agrees with the Magistrate Judge that the agency did not act unreasonably here, and
consequently the litigation did not further the public’s general interest in agency transparency
and accountability under FOIA.

Cf. Comer v. I.R.S., No. 97-CV-76329-DT, 2002 WL

31835437, at *2 (E.D. Mich. Oct. 30, 2002) (determination of public interest may be based on
reasonableness of agency behavior). Moreover, the Court disagrees that because the request was
made in furtherance of Plaintiff’s litigation on behalf of a class of individuals that call
themselves “Juggalos,” the present lawsuit benefited the public. See Pl. Mot. at 9. While
Plaintiff suggests that the government has wrongfully classified these individuals as a gang, it
fails to explain how the public interest — rather than the interest of this discrete set of people —
is served by challenging that classification. Furthermore, there is no evidence that any of the

14

documents produced in response to Plaintiff’s request shed any particular light on the
government’s decision to classify “Juggalos” as a gang.
The Court also agrees with the Magistrate Judge that Plaintiff had a commercial interest
in obtaining these documents. While Plaintiff asserts that the associated litigation seeks only
injunctive relief — a form of equitable relief — that fact does not change the underlying
commercial nature of Plaintiff’s relationship with those litigants. Notably, Plaintiff has not
indicated that it is representing its clients pro bono; therefore Plaintiff is presumably being
compensated for its services in the underlying litigation, and to the extent the request was made
in furtherance of that litigation, Plaintiff has a pecuniary interest in obtaining the documents.
See Davy v. C.I.A., 550 F.3d 1155, 1160 (D.C. Cir. 2008) (observing that requestors who seek
documents for a personal advantage are not necessarily deserving of a public subsidy because
they do not require an incentive to litigate); Ellis, 941 F. Supp. at 1079 (“Courts have routinely
found that the use of FOIA as a substitute for discovery constitutes a private, noncompensable
interest.”) (collecting cases).
Finally, the Court agrees that the agency had a reasonable basis for withholding certain
records. First, as discussed above, Plaintiff did not contest the FBI’s withholding of certain
documents under various statutory exemptions, and the Court subsequently affirmed that the FBI
had met its burden in demonstrating the applicability of the exemptions. Moreover, and contrary
to Plaintiff’s assertions, Defendant has offered a reasonable explanation for the FBI’s failure to
respond to Plaintiff’s request within the 20-day statutory time period. The Hardy Declaration
references a “first-in, first-out” policy in processing requests, as well as a significant uptick in
requests that created a backlog causing delays. The Court has already determined that the FBI
did not conduct itself unreasonably in response to Plaintiff’s request, and that any resultant

15

delays were reasonable and likely the product of administrative processing, as opposed to
intentional stonewalling. As such, the FBI had a reasonable basis both for withholding certain
documents and for the delay in the production of non-exempt responsive documents.
None of the three equitable factors is met here, and Plaintiff fails to offer any other
convincing equitable consideration in its favor. Therefore, the Court agrees with the Magistrate
Judge that Plaintiff would not be entitled to an award of fees.9
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for attorney fees (Dkt. 47) is denied.
SO ORDERED.

Dated: September 30, 2015
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on September 30, 2015.
s/Carrie Haddon
Case Manager

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Because the Court concludes that Plaintiff is not eligible for, nor entitled to, attorney fees under
FOIA, it need not address the Magistrate Judge’s conclusion that Plaintiff is not precluded from
attorney fees by virtue of its status as a law firm represented by its own members.
16