Citizens for a Strong New Hampshire, Inc. v. US Internal Revenue Service
///ORDER denying 36 Motion for Attorney Fees. Clerk shall enter judgment in accordance with document no. 30 , document number 35 , and this order, and close the case. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Citizens for a Strong
New Hampshire, Inc.
Civil No. 14-cv-487-LM
Opinion No. 2016 DNH 169
Internal Revenue Service
O R D E R
This case began when Citizens for a Strong New Hampshire,
Inc. (“Citizens”) filed a complaint against the Internal Revenue
Service (“IRS”) to challenge the IRS’s response to a request it
had made under the federal Freedom of Information Act (“FOIA”),
5 U.S.C. § 552.
The case proceeded to a second round of summary
judgment practice, but the litigation of substantive issues
ended when plaintiff informed the court that it did not object
to defendant’s second motion for summary judgment.
court is plaintiff’s motion for attorneys’ fees and costs.
For the reasons that follow, plaintiff’s
motion is denied.
I. The Legal Standard
The Freedom of Information Act provides that “[t]he court
may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any case under
[FOIA] in which the complainant has substantially prevailed.”
5 U.S.C. § 552(a)(4)(E)(i).
The statute further provides:
For purposes of this subparagraph, a complainant has
substantially prevailed if the complainant 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 the complainant’s
claim is not insubstantial.
5 U.S.C. § 552(a)(4)(E)(ii).
If the court determines that a
FOIA plaintiff is eligible for an award of attorneys’ fees and
costs, because it has substantially prevailed on its claim, then
the court must ask whether the “plaintiff [is] entitled to an
award based on a balancing of equitable factors.”
CIA, 986 F.2d 547, 568 (1st Cir. 1993) (emphasis added) (citing
Crooker v. U.S. Parole Comm’n, 776 F.2d 366, 367 (1st Cir.
The facts in this section are drawn from documents
previously filed in this case plus a declaration made by IRS Tax
Law Specialist Denise Higley and submitted by the IRS in support
of its objection to Citizens’ motion for attorneys’ fees.
The relevant equitable “factors include the following:
‘(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.’” Maynard, 986 F.2d at 568 n.24
(quoting Aronson v. U.S. Dep’t of Housing & Urban Dev., 866 F.2d
1, 3 (1st Cir. 1989); citing Crooker, 776 F.2d at 367).
In June of 2014, Citizens made a FOIA request to the IRS,
seeking “[a]ny and all documents or records of emails or
correspondence to or from New Hampshire Senator . . . Jeanne
Shaheen and Congresswoman Carol Shea-Porter . . . to or from
[three high-ranking IRS officials] between the dates of January
1, 2009 and May 21, 2013.”
Doc. no. 1-1, at 1.
On June 29, the
IRS assigned Citizens’ request to Higley.
On July 23, Higley directed the agency’s FOIA Coordinator
for Legislative Affairs, Ross Kiser, to search for documents
responsive to Citizens’ request.
In a letter dated July 23,
Higley informed Citizens that she was “unable to send the
information [Citizens] requested by July 23, 2014, which is the
20 business-day period allowed by law.”
Doc. no. 1-2, at 1.
addition, Higley’s letter informed Citizens that the IRS had
“extended the response date to October 23, 2014, when we believe
we can provide a final response.”
On July 28, Kiser sent Higley 30 documents, totaling 96
Higley reviewed those documents, made proposed
redactions, and drafted a cover letter to Citizens.
11, Higley transmitted the documents Kiser had sent her, along
with a draft cover letter, to the IRS’s Office of Chief Counsel
That material was then placed in queue, behind 27
other requests for review that involved a total of approximately
21,000 pages of responsive documents.
On October 22, three things happened: (1) OCC attorneys
provided Higley with suggested changes to her redactions; (2)
Higley reviewed those changes and resubmitted the documents for
final OCC review; and (3) Higley sent Citizens a letter in which
On July 23, 2014, I asked for more time to obtain the
records you requested. I am still working on your
request and need additional time to collect, process,
and review any responsive documents. I will contact
you by January 27, 2015, if I am still unable to
complete your request.
Doc. no. 1-3, at 1.
Citizens filed this action on October 30, 2014.
November 5, Higley learned of this action from OCC.
accordance with agency policy, Higley closed her file on
Citizens’ request and transferred the responsive documents to
According to Higley, “[b]ut for the filing of the
litigation, [she] would have provided documents to [Citizens] as
soon as [she] received final clearance from OCC.”
38-1, at 5.
On November 26, the IRS made a disclosure to Citizens.
the 96 pages of documents that Kiser found and forwarded to
Higley, the IRS: (1) withheld 51 pages as exempt, under 5 U.S.C.
§ 552(b)(3);2 (2) provided four pages in redacted form, pursuant
Section 552(b)(3) exempts from FOIA disclosure “matters
that are . . . specifically exempted from disclosure by statute
. . . .”
to 5 U.S.C. § 552(b)(6);3 and (3) provided 41 pages in full.
Notwithstanding the IRS’s disclosure, Citizens did not drop its
suit against the IRS.
In December of 2014, the IRS moved for summary judgment,
arguing that it had conducted a reasonable and adequate search
of its records, and that the information it did not give
Citizens was properly withheld pursuant to 5 U.S.C. § 552(b)(3)
and 26 U.S.C. § 6103(a).4
Citizens objected to the IRS’s motion
for summary judgment and filed a cross-motion for partial
summary judgment in which it argued that the IRS improperly
withheld records, in violation of FOIA, by: (1) failing to
comply with the statutory time limits for disclosure; and (2)
failing to conduct a reasonable search.
Based upon plaintiff’s
original complaint and the parties’ subsequent pleadings, the
court has characterized Citizens’ claim this way:
Citizens has brought a claim against the IRS for
violation of FOIA, alleging that the IRS: (1)
conducted an inadequate search; (2) unduly delayed its
Section 552(b)(6) exempts from FOIA disclosure “matters
that are . . . personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.”
Section 6103(a) is a provision in the Internal Revenue
Code that provides that tax “[r]eturns and return information
shall be confidential” and shall not be disclosed by government
officers or employees, or other persons who have access to such
disclosure . . .; and (3) unlawfully withheld the 51
pages of responsive but purportedly exempt documents.
Doc. no. 30, at 6-7.
In an order dated August 31, 2015, the court ruled on all
three parts of Citizens’ claim.
First, it denied summary
judgment to both parties on Citizens’ assertion that the IRS
conducted an inadequate search.5
Second, it denied summary
judgment to Citizens on its assertion that the IRS’s response to
its FOIA request was untimely.
And third, it granted summary
judgment to the IRS on Citizens’ assertion that the IRS had
improperly withheld 51 pages of records.
Based upon its
resolution of the motions before it, the court indicated its
intention to schedule a conference with the parties to discuss
the next steps in the case.
In September and October of 2015, i.e., after the court
issued its order on the parties’ cross motions for summary
On this issue, the court explained its denial of summary
judgment this way:
[T]he IRS has not established that it conducted a
On the other hand, neither has Citizens
established that the search was unreasonable.
. . .
Put simply, there exist genuine issues of
material fact as to whether the IRS conducted an
adequate search, and the record does not entitle
either party to summary judgment on this issue.
Doc. no. 30, at 12.
judgment, the IRS conducted a “supplemental search for
Doc. no. 32-2, at 1.
After locating no
additional responsive records, the IRS filed a second motion for
summary judgment that was supported by a declaration describing
its supplemental search.
In its motion, it argued that it was
not liable for conducting an inadequate search.
telephone conference, plaintiff indicated that it did “not
oppose defendant’s motion for summary judgment.”
Doc. no. 35,
Accordingly, the court granted defendant’s motion and
further noted that “[t]he only issue remaining in the case [was]
whether plaintiff is entitled to recover reasonable attorneys’
fees and costs incurred in bringing this action.”
Citizens argues that the court should grant its request for
fees and costs because it has demonstrated that: (1) it
substantially prevailed in this action, which establishes its
eligibility for an award of fees and costs; and (2) the equities
weigh in favor of an award of fees and costs, which establishes
its entitlement to such an award.
The IRS disagrees,
The court agrees with the IRS that Citizens has
not demonstrated that it substantially prevailed in this
In the absence of “a judicial order, or an enforceable
written agreement or consent decree,” 5 U.S.C. §
552(a)(4)(E)(i)(I), a FOIA plaintiff seeking to prove that it
substantially prevailed “must establish that the filing of the
litigation was ‘necessary’ and ‘had a causative effect on the
disclosure of the requested information.’”
Maynard, 986 F.2d at
568 (quoting Crooker v. U.S. Dep’t of Justice, 632 F.2d 916, 932
(1st Cir. 1980); citing Vt. Low Income Advocacy Council, Inc.
(VLIAC) v. Usery, 546 F.2d 509, 513 (2d Cir. 1976)).
FOIA plaintiff attempts to make the requisite showing, “the
government, in opposing the request, must do more than merely
deny [the plaintiff’s allegations].”
Crooker, 632 F.2d at 922.
Finally, the determination of whether a FOIA plaintiff “has in
fact ‘substantially prevailed’ . . . must be guided by the
particular circumstances of each case.”
In its motion for attorneys’ fees, Citizens notes that it
filed its FOIA request in June of 2014, and then continues:
The IRS . . . utterly ignored Plaintiff’s request for
more than five (5) months. Only after Plaintiff was
compelled to file suit, on October 30, 2014—and the
IRS could thus no longer disregard Plaintiff’s FOIA
request—did the Service attempt to comply with its
statutory obligations days before an Answer to
Plaintiff’s Complaint was due.
Doc. no. 36-1, at 1-2 (citations to the record omitted).
Plaintiff’s lawsuit clearly elicited a voluntary
change in the position of the IRS. . . . Only after
Citizens filed its lawsuit, and just a few days before
the agency’s response to the Complaint was due, the
IRS conducted a search and produced some responsive
documents to Plaintiff. . . . Only after this Court
denied the IRS’s motion for summary judgment, finding
that “the IRS has not established that it conducted a
reasonable search,” did the IRS determine to undertake
a more thorough – and reasonable – search for
Id. at 5 (emphasis in the original).
In Citizens’ view, its
status as a prevailing party is demonstrated by two events: (1)
the IRS’s production of documents, in response to the complaint;
and (2) the IRS’s decision to conduct a second search for
documents, in response to the court’s summary judgment order.
The court considers each litigation event in turn.
A. The IRS’s Release of Documents
Regarding the question of whether a FOIA suit caused a
release of documents, thus making the plaintiff a prevailing
party, Judge Gelpi recently explained that
[t]o determine whether a causal nexis exists between
[a requester’s] lawsuit and the release of documents,
the Court considers whether the [government agency],
upon actual notice of the FOIA request, made a good
faith effort to identify and process the materials for
Vasquez-Gonzalez v. United States, ___ F. Supp. 3d ___, 2016 WL
424993, at *2 (D.P.R. Feb. 3, 2016) (citing Maynard, 986 F.2d at
568, Cox v. U.S. Dep’t of Justice, 601 F.2d 1, 6 (D.C. Cir.
In Vasquez-Gonzalez, Judge Gelpi determined that the
plaintiff’s suit did not cause the release of documents because
“the IRS [had] substantially completed processing Plaintiff’s
request before he filed this claim.”
2016 WL 424993, at *2.
The processing in Vasquez-Gonzalez consisted of this:
Prior to the suit, DS Kinsey worked on Plaintiff’s
request for at least five days, conducting the
document search and updating Plaintiff on the status
of his request. DS Elliott also spent six days
reviewing and redacting files pertinent to Plaintiff’s
request. After Plaintiff clarified the scope of the
records he requested, the IRS promptly compiled and
reviewed the documents and submitted them to him
Here, the IRS has produced evidence that before Citizens
filed suit on October 30, 2014: (1) Higley directed Kiser to
search for documents responsive to Citizens’ request (on July
23); (2) Kiser sent Higley 30 documents (on July 28); (3) Higley
reviewed those documents and sent proposed redactions and a
draft cover letter to OCC (on August 11); (4) OCC attorneys
provided Higley with suggested changes to her redactions (on
October 22); and (5) Higley reviewed those changes and
resubmitted the documents to OCC for final review (on October
Thus, the IRS had substantially completed its processing
of Citizens’ request before Citizens filed suit.
demonstrates that Citizens’ suit did not have a causative effect
on the IRS’s disclosure.
See Am. Bird Conservancy v. U.S. Fish
& Wildlife Serv., 110 F. Supp. 3d 655, 665-66 (E.D. Va. 2015)
(chronicling agency’s pre-suit processing of plaintiff’s FOIA
request, which vitiated claim that lawsuit caused disclosure);
Calypso Cargo Ltd. v. U.S. Coast Guard, 850 F. Supp. 2d 1, 4-6
(D.D.C. 2011) (same).
To be sure, the IRS released information to Citizens
approximately one month after Citizens filed suit.
“chronology, by itself . . . is not determinative.”
986 F.2d at 568 (citing Cazalas v. U.S. Dep’t of Justice, 660
F.2d 612, 619 (5th Cir. 1981) (“[T]he mere fact that the
documents requested were not released until after the suit was
instituted, without more, is not enough to establish that a
complainant has substantially prevailed.”); Cox, 601 F.2d at 6
As Judge Urbina explained in a decision upon which
The key question . . . is whether “the institution and
prosecution of the litigation cause[d] the agency to
release the documents obtained during the pendency of
the litigation.” Church of Scientology of Cal. v.
Harris, 653 F.2d 584, 587 (D.C. Cir. 1981). Although
“the mere filing of the complaint and the subsequent
release of documents is insufficient to establish
causation,” Weisberg v. U.S. Dep’t of Justice, 745
F.2d 1476, 1496 (D.C. Cir. 1984), “it is certainly a
salient factor” in the analysis, Judicial Watch, Inc.
v. U.S. Dep’t of Homeland Sec., [Civ. Action No. 082133 EGS/DAR,] 2009 WL 1743757, at *3 (D.D.C. [June
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 811 F.
Supp. 2d 216, 232 (D.D.C. 2011).
While Citizens relies upon Electronic Privacy for the
proposition that the timing of the IRS’s release supports a
favorable ruling on the question of causation, there is a
significant distinction between that case and this one.
Specifically, like the agencies in Vasquez-Gonzalez, American
Bird, and Calypso Cargo, the IRS has documented the steps it
took to respond to the FOIA request presented to it, but, in
contrast, the agency in Electronic Privacy did “not claim to
have conducted any substantive searches for records prior to the
commencement of litigation.”
811 F. Supp. 2d at 233.
distinction makes all the difference because a demonstration of
pre-suit processing of a FOIA claim is persuasive evidence that
the requester’s suit did not cause the agency’s subsequent
Here, by producing evidence of the actions it took
in response to Citizens’ request, before Citizens filed suit,
the IRS has demonstrated that Citizens’ suit did not cause it to
release the documents it provided Citizens.
That means that the
IRS’s release of information did not make Citizens a prevailing
party for purposes of 5 U.S.C. § 552(a)(4)(E)(ii).
B. The IRS’s Supplemental Search
Citizens also argues that it substantially prevailed
because this suit prompted the IRS to undertake a supplemental
search for responsive records.
Citizens frames its argument
The IRS’s belated compliance with its obligations
under the law would not have occurred but for
Plaintiff’s initiation of the lawsuit. Put another
way, Plaintiff would not have received the adequate
search for documents to which it was entitled under
FOIA but for Plaintiff’s lawsuit – a fact the court
deemed persuasive in Church of Scientology, 653 F.2d
Doc. no. 39, at 6.
The court is not persuaded.
To begin, notwithstanding its citation of Church of
Scientology, which the court addresses below, Citizens
identifies no authority for the proposition that the IRS’s
performance of a supplemental search for responsive records made
it a prevailing party.
Moreover, in Mobley v. Department of
Homeland Security, 908 F. Supp. 2d 42 (D.D.C. 2012), Judge
Howell reached a conclusion unfavorable to Citizens’ position
when he was presented with an argument similar to the one
Citizens advances here.
the primary question presented [was] whether a FOIA
plaintiff has “substantially prevailed” when the
plaintiff sought, but never received, any records
responsive to its request, but the plaintiff’s lawsuit
nevertheless succeeded in causing the defendant to
process a request that the agency had previously
refused to process.
Id. at 44.
Judge Howell did not “agree with the plaintiffs’ novel
interpretation of the term ‘substantially prevailed.’”
908 F. Supp. 2d at 47.
He began by noting “that the D.C.
Circuit has interpreted the term ‘substantially prevailed’
rather narrowly to require that a FOIA plaintiff relying on the
catalyst theory must receive records responsive to its request
in order for that plaintiff to have ‘substantially prevailed.’”
Id. (citing Brayton v. Office of U.S. Trade Rep., 641 F.3d 521,
524-25 (D.C. Cir. 2011); Davis v. U.S. Dep’t of Justice, 610
F.3d 750, 752 (D.C. Cir. 2010)).
Then, even after acknowledging
that “[t]he language of the statute itself . . . suggests that a
broader conception of substantially prevailing is possible when
a plaintiff relies on the catalyst theory,” Mobley, 908 F. Supp.
2d at 47, Judge Howell concluded that “the fact that the
plaintiffs received no documents, despite the fact that the
defendant processed their request, militates against a
conclusion that the plaintiffs substantially prevailed.”
Like the search in Mobley, the IRS’s supplemental search in
this case resulted in the identification of no responsive
documents, which militates against a conclusion that the IRS’s
initiation of that search made Citizens a substantially
Moreover, the reasoning of Mobley applies
with even greater force here, where the search on which Citizens
relies for its claim to prevailing party status was not an
initial search that the IRS had previously refused to undertake
but, rather, a second search, supplemental to the one the IRS
had started, and nearly completed, before Citizens ever filed
In sum, because the IRS’s supplemental search did not
result in the production of any records beyond those identified
by its initial search, the mere fact that the IRS conducted the
supplemental search does not make Citizens a prevailing party
for purposes of 5 U.S.C. § 552(a)(4)(E)(ii).
Church of Scientology, on which Citizens relies for the
proposition that it is a prevailing party because it filed a
lawsuit that resulted in an adequate search for documents, does
not compel, or even support, a contrary conclusion.
case, the D.C. Circuit explained, consistent with the First
Circuit’s decision in Maynard, that the key question for
determining whether a FOIA plaintiff has substantially prevailed
is this: “[D]id the institution and prosecution of the
litigation cause the agency to release documents obtained during
the pendency of the litigation.”
F.2d at 587 (emphasis added).
Church of Scientology, 653
The court continued:
[T]he party seeking such fees in the absence of a
court order must show that prosecution of the action
could reasonably be regarded as necessary to obtain
the information. Vermont Low Income Advocacy Council,
Inc. v. Usery, supra at 513, and that a causal nexus
It is also worth noting that the court’s summary judgment
order reached no conclusion on the adequacy of the IRS’s first
search, which undermines Citizen’s suggestion that the
supplemental search was a remedy for a previous inadequate
exists between that action and the agency’s surrender
of the information, Cuneo v. Rumsfeld, . . . 553 F.2d
(1360) at 1366 [(D.C. Cir. 1977)].
653 F.2d at 588 (quoting Cox, 601 F.2d at 6).
Thus, in Church
of Scientology, as in Maynard, the focus is on whether the
lawsuit results in the production of information, not merely a
search for information.
And in Church of Scientology, the
lawsuit prompted a rather sizeable disclosure:
Throughout the administrative processing of
Scientology’s FOIA request, HEW maintained that only
three card references and three documents fell within
the scope of the request. After Scientology filed
suit and began discovery, HEW disclosed that over 200
responsive documents existed in the files of the
General Counsel, and during the course of the
litigation released approximately two-thirds of those
653 F.2d at 588.
In short, Church of Scientology does not stand for the
proposition that a FOIA plaintiff prevails when its lawsuit has
a causative effect on the implementation of an unproductive
search for responsive documents, which is all that Citizens’
Thus, Citizens’ reliance upon Church of
Scientology is misplaced.
Neither the IRS’s disclosure of information after Citizens
filed suit, nor its supplemental search for information after
the court ruled on the parties’ cross motions for summary
judgment, made Citizens a prevailing party for purposes of
5 U.S.C. § 552(a)(4)(E)(ii).
Because Citizens is not a
prevailing party, it is not eligible for an award of attorneys’
fees and costs.
Because Citizens is not eligible for an award
of fees and costs, the court need not address the question of
whether Citizens would be entitled to such an award, under the
equities described in Maynard.
For the reasons described above, plaintiff’s motion for
attorneys’ fees, document no. 36, is denied.
The clerk of the court
shall enter judgment in accordance with document no. 30, document no.
35, and this order, and close the case.
United States District Judge
September 20, 2016
David A. French, Esq.
Carly F. Gammill, Esq.
Yonatan Gelblum, Esq.
Bryan K. Gould, Esq.
Francis J. Manion, Esq.
Stephanie A. Sasarak, Esq.
Jay Alan Sekulow, Esq.
Abigail A. Southerland, Esq.
Michelle K. Terry, Esq.
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