Weisner v. Animal and Plant Health Inspection Service

Filing 42

ORDER denying 27 Motion for Attorney Fees - Signed by Magistrate Judge David W. Daniel on 06/29/2012. (Baker, C.)

THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:10-CV-00568-FL

RONIA WEISNER,
Plaintiff,
v.

ANIMAL AND PLANT HEALTH
INSPECTION SERVICE and
UNITED STATES DEPARTMENT
OF AGRICULTURE,
Defendants.

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ORDER

This matter is before the Court on Plaintiffs Motion for Attorney Fees [DE-27]. The
motion is currently ripe for review and, accordingly, Judge Flanagan has referred it to the
undersigned for disposition.
STATEMENT OF THE CASE
Plaintiff Ronia Weisner (hereinafter "Plaintiff'), filed the original Complaint [DE-4] in
this action on December 13,2010 against Defendant Animal and Plant Health Inspection Service
("the APHIS"), alleging violations of the Freedom ofInforrnation Act ("FOIA"), 5 U.S.C. § 552.
On February 16, 2011, Plaintiff filed an Amended Complaint [DE-9] against the APHIS and
Defendant United States Department of Agriculture ("the USDA") (collectively "Defendants").
Defendants filed an Answer [DE-13] to the Amended Complaint on March 1, 2011.
The case proceeded according to a Case Management Order [DE-15] entered on March
23,2011 and a final pre-trial conference was set for February 3, 2012 in front of Judge Flanagan.

Neither party appeared for the conference and, accordingly, Judge Flanagan dismissed the case
with prejudice. See Minute Entry at DE-23. However, on February 4, 2012, Plaintiff filed a
Motion to Vacate Dismissal [DE-24], wherein Plaintiff asked that the Court vacate the dismissal
and re-open the case for the limited purpose of filing a motion for attorney fees.

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On February 6, 2012, Judge Flanagan entered an Order [DE-25], which granted

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Plaintiff's motion to vacate dismissal in part and re-opened the case for the limited purpose of

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allowing Plaintiff to file a motion for attorney fees. As a result, on February 21, 2012, Plaintiff

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filed a Motion for Attorney Fees [DE-27], to which Defendants responded [DE-33] on March 20,

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2012. It is to this motion that the Court now turns its attention.

STATEMENT OF THE FACTS
On July 10, 2008, Plaintiff's dog, Jeddah, went missing while under the care of United
Airlines ("United") and was never found. As a result, Plaintiff filed an online FOIA request on
June 10, 2010, which requested that the APHIS search its records and provide Plaintiff with all
records relating to Jeddah's disappearance. Plaintiff represented that she intended to use the
records for personal and not commercial purposes.
On July 2, 2010, the APHIS denied Plaintiff's FOIA request on the basis of 5 U.S.C. §
552(b)(7)(A) ("Exemption 7(A)"), a FOIA exemption which permits records to be withheld
when their release could interfere with pending or ongoing law enforcement proceedings.
Subsequently, Plaintiff commenced the instant action in December of 2010. During the course
of this action, on June 27, 2011, Defendants produced a "Vaughan Index" which catalogued 185
pages of records in total: 182 pages of records which were being withheld pursuant to Exemption
(7)(A), as well as three pages of records which were being withheld under a different exemption,
5 U.S.C. § 552(b)(5) ("Exemption 5"), which allows inter-agency and intra-agency
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communications to be withheld. In November of 2011~ Defendants produced the records it had
previously

withheld~

apparently after an administrative case between the Government and United

had been resolved. See

Pl.~s

Mem. in Supp. of Mot. for Atty's Fees at 1-4 [DE-27-1]; Defs.'

Resp. at 1-3 [DE-33].
DISCUSSION
A plaintiff in a FOIA action may recover attorney fees after the resolution of the dispute
under certain circumstances, to wit:
(i) The 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.
(ii) 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)(i)-(ii).

Thus, the question divides into two parts: first, whether a

plaintiff is eligible for attorney fees and,

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whether a court believes that a plaintiff is

entitled to such fees in particular case. Accordingly, the Court will address each of these two

considerations in turn.
1. Whether Plaintiff is eligible for attorney fees

Plaintiff argues that she is eligible for attorney fees in the instant action, pursuant to 5
U.S.C. § 552(a)(4)(E), for two reasons.
First, Plaintiff argues that the records which were the subject of both her FOIA request
and the instant action were ultimately released by Defendants as a result of the instant action and
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that, therefore, she has "substantially prevailed." To that end, Plaintiff argues that, prior to her
filing suit, Defendants, refused to produce the requested records, denied her FOIA request on the
basis of a blanket exemption without sufficient explanation, and refused to respond to her
appeals, but that, six months after the instant action was filed, Defendants provided a "Vaughan
Index" and explanation for the claimed exemption(s) in response to the litigation.
Second, Plaintiff argues that the administrative action filed by the Government against
United in July 2011 was filed in violation of an agreement, predating the filing of the present
action, which supposedly prevented the Government from bringing charges against United
regarding the disappearance of Jeddah. To that end, Plaintiff appears to allege that United raised
the existence of such a supposed agreement in response to the administrative action, ending that
action in all but name within a few weeks, and that the Government should therefore never have
been involved in a law enforcement proceeding in the first place.
In response, Defendants concede that, ultimately, they voluntarily released the records as
contemplated by 5 U.S.C. § 552(a)(4)(E)(ii)(II). However, Defendants argue that they properly
identified but withheld the records during the pendency of the Government's administrative
action against United pursuant to a valid FOIA exemption and that, within a few days of the
resolution of the administrative action, they produced the records of their own volition. As a
result, Defendants argue that Plaintiff is not entitled to attorney fees because Plaintiff did not
substantially prevail and that, in fact, the records were not released as a result of the instant
action but were identified and withheld pursuant to an applicable exemption until such time as
the exemption ceased to apply. In support of their position, Defendants also note that Plaintiffs
claim that the Government was somehow prevented from bringing charges against United is
entirely without merit.
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The Court finds that Plaintiff is not eligible for attorney fees in the instant action. To that
end, the Court finds that Defendants' withholding of the records was pursuant to a valid

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exemption and that, because Defendants turned over the records when the exemption cased to
reply, Plaintiff did not "substantially prevail."
Beginning in July of 2010, five months before the instant action was commenced, and
continuing up until the time that they released the records in November of 20 II, Defendants

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consistently claimed that they were withholding records pursuant to Exemption 7(A), which
provides that a party may withhold "records or information compiled for law enforcement
purposes, but only to the extent that the production of such law enforcement records or
information could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C.

§ 552(b)(7)(A).1 During that time period, the Government was involved in an administrative
action with United, which the Court finds to have been an "enforcement proceeding" as
contemplated by Exemption 7(A). Plaintiff does not appear to dispute that she received the
records within a few days of the resolution of this administrative action.
Though the Fourth Circuit has not spoken on the issue, Defendants are correct to point
out that, generally, when the Government is "'correct as a matter of law' to refuse a FOIA
request ... Plaintiffs who sue to force disclosure ... are not entitled to attorney fees," Brayton v.

Office of the United States Trade Representative, 641 F.3d 521,526 (D.C. Cir. 2011) (internal
I The Court does recognize that it appears that, in the "Vaughan Index" produced in June of 20 II, Defendants
claimed for the ftrst time that 3 of the 185 total pages of records had been withheld under a different exemption,
Exemption 5, which provides that a party may withhold "inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. §
552(b)(5). However, though Plaintiff notes this fact, she does not appear to argue that Exemption 5 was improperly
claimed by Defendants or that these 3 pages were improperly withheld for any other reason not discussed elsewhere
herein. Accordingly, the Court declines to address Exemption 5 separately. Furthermore, the Court notes that, even
assuming, arguendo, that Plaintiff may have a stronger claim for attorney fees as to the records claimed under
Exemption 5, the Court also notes that these 3 pages would amount to a total potential award, $280.76, representing
31185 of Plaintiff s claimed $17,313.50 in attorney fees, which would also require assuming, arguendo, that such
total of attorney fees is in any way reasonable.

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citations omitted), and Plaintiff has offered no authority to the contrary.

Instead, Plaintiff

appears to have relied on cases which examine the propriety of claimed exemptions in the
context of courts' examinations of defendants who continued to claim those exemptions, as
opposed to the retrospective propriety of exemptions claimed by defendants who voluntarily
released records once their claimed exemptions ceased to apply, and the Court finds such
authority to be inapposite. Accordingly, the Court finds that Defendants withheld the records
only as long as was necessary under Exemption 7(A), releasing them promptly when the
exception ceased to apply.
Furthermore, if, as Plaintiff seems to suggest, Defendants were intent on withholding the
records unreasonably, the Court fails to see why Defendants would have voluntarily released the
records at any point and it stands to reason that the matter would currently be before the
undersigned not as to the posthumous issue of attorney fees, but on Plaintiff s motion for an
order directing Defendants to release the records on the basis of a continuing improperly claimed
exemption. In addition, even to the extent that Plaintiff is attempting to argue that Exemption
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7(A) was improperly claimed by Defendants because they did not sufficiently explain their

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rationale, because their release of the records would not have interfered with enforcement

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proceedings, or because Defendants claimed Exemption 7(A) fraudulently in violation of some

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supposed agreement with United, in the absence of any significant factual support to the

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contrary, the Court finds that any such arguments are without merit due to Defendants' prompt
release of the records. Nothing that Plaintiff has argued has persuaded the Court that Defendants
withheld the records for any reason other than pursuant to a valid exemption and released them
as soon as that exemption ceased to apply. Accordingly, the Court finds Plaintiffs position that
she "substantially prevailed" and that Defendants released the records only as a result of the
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instant action to be unconvincing and, therefore, finds that Plaintiff is not eligible for attorney
fees in the instant action.

2. Whether Plaintiff is entitled to attorney fees
Though the Court finds that Plaintiff is not eligible for attorney fees, thus concluding the
discussion under 5 U.S.C. § 552(a)(4)(E), in the alternative, the Court also finds that even if
Plaintiff were eligible for fees, she is not entitled to them.
If, at the outset, a court determines that a plaintiff has substantially prevailed and is

eligible for attorney fees, the court must then assess whether the plaintiff is entitled to attorney
fees based on the following four factors: "(1) the benefit to the public, if any, derived from the
case; (2) the benefit to the plaintiff; (3) the nature of the plaintiffs interest in the records sought;
and (4) whether the government's withholding of the records had a reasonable basis in the law."
Reinbold v. Evers, 187 F3d 348, 362 n.16 (4th Cir. 1999).

Here, Plaintiff argues that these four factors weigh in her favor. To that end, Plaintiff
argues that the records benefit the public because she desired them both to pursue the public's
interest in justice via her action against United as well as pursue animal safety legislation, that
the records primarily benefit her as an individual and were not sought for any commercial
benefit, and that Defendants lacked a colorable basis to withhold the records. In response,
Defendants argue that the four factors do not weigh in Plaintiff's favor because Plaintiff sought
the records in order to obtain money damages from United for her own personal benefit as
opposed to any animal-rights agenda, and that Defendants had a reasonable basis in law to
withhold the records.
The Court has already found that Defendants withheld the records pursuant to a valid
exemption until that exemption ceased to apply. Therefore, the fourth factor weighs against
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Plaintiff from the outset. In addition, the Court notes that Plaintiff has represented to the Court
that one of her primary purposes in requesting the records was to assist her in her ongoing action
against United and that, three months after receiving the records, on February 22, 2012, Plaintiff
settled that action, presumably with the benefit of the records. See Notice of Settlement, Weisner
v. United Airlines, No. 5:1O-CV-273-FL, DE-33. As a result, though Plaintiff vaguely alludes to
an animal-rights agenda, having been presented with no evidence of the progress of such agenda
as a result of Plaintiff s receipt of the records, the Court concludes that the primary result of
Defendants' release of the records has been personal gain to Plaintiff due to the settlement of her
suit against United and finds that the first three factors also weigh against Plaintiff. Accordingly,
the Court finds that Plaintiff is not entitled to attorney fees in the instant action.
CONCLUSION

For all of the foregoing reasons, Plaintiffs Motion for Attorney Fees [DE-27] is
DENIED.

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This the!!l!:day of June, 2012.

DAVID W. DANIEL
United States Magistrate Judge

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