Weikamp v. United States Department of the Navy
Filing
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Order denying Plaintiff James Weikamp's Motion for Attorney Fees (Related Doc # 28 ). Signed by Judge Solomon Oliver, Jr on 3/29/2016.(D,M)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES WEIKAMP,
Plaintiff
v.
UNITED STATES DEPARTMENT OF
THE NAVY,
Defendant
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Case No.: 1:14 CV 22
JUDGE SOLOMON OLIVER, JR.
ORDER
Currently pending before the court is Plaintiff James Weikamp’s (“Plaintiff”) Motion for
Attorneys’ Fees and Costs (“Motion for Fees”) (ECF No. 28). Plaintiff maintains that he is entitled
to an award of fees and costs against Defendant United States Department of the Navy (“Navy” or
“Defendant”) in the amount of $61,352.18. For the following reasons, the court denies Plaintiff’s
Motion for Fees.
I. FACTS AND PROCEDURAL BACKGROUND
A more thorough recitation of the facts appears in the court’s Order dated September 24,
2014. (Order, ECF No. 21.) Lakeshore TolTest JV, LLC (“LTJV”) participated in a competitive
bidding process to complete construction of the Naval Family Housing Project at the Guantanamo
Bay, Cuba Naval Base (“Project”). LTJV won the contract but, due to various issues, only
completed 25% of the Project. Defendant plans to conduct a rebid for the construction of the
remaining 75% of the Project (“Rebid”). On January 2, 2014, LTJV submitted a certified claim
under the Contract Disputes Act (“CDA”), seeking reformation or rescission of its contract with
Defendant, alleging that Defendant had actual or constructive knowledge of material errors in
LTJV’s Project bid. To support the CDA claim and avoid potential Federal False Claims Act
exposure, LTJV is required to provide supporting documentation. On August 27, 2013, Plaintiff,
individually and as counsel for LTJV, submitted a FOIA request to Defendant, seeking various
documents, including “any information in the possession of the Department of the Navy . . .
concerning the [Project].” (Compl. at ¶ 6, ECF No. 1; FOIA Request, Ex.1 to Compl., ECF No.1-1.)
On September 18, 2013, the Naval Facilities Engineering Command Southeast Initial Denial
Authority (“IDA”) identified and withheld a number of records it believed were responsive to
Plaintiff’s Request, including: (1) the cost proposals of those offerors who were not awarded a
contract; (2) the Price Evaluation Report; (3) the Source Selection Board Report; and (4) the
Parametric Cost Engineering System (“PACES”) Assembly Detail Report (“Independent
Government Estimate” or “IGE”). The IDA cited FOIA Exemptions 3 (statutory exemption) and
4 (trade secrets or commercial information) as the bases for withholding the responsive documents.
On October 4, 2013, Plaintiff appealed to the Navy’s Office of General Counsel (“OGC”). On
October 10, 2013, the IDA agreed to reconsider Plaintiff’s request and the OGC dismissed the
appeal as moot. On November 4, 2013, the IDA issued a second denial, citing Exemptions 3, 4, 5
(privileged inter-agency or intra-agency memorandums), and 6 (invasion of privacy). On November
11, 2013, Plaintiff appealed the November 4, 2013 denial to the OGC. The OGC did not respond
to Plaintiff within the statutory timeframe; thus, the appeal was deemed denied.
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On January 6, 2014, after exhausting all administrative remedies, Plaintiff filed the instant
action, alleging that Defendant wrongfully withheld responsive agency records and requesting that
this court order Defendant to disclose all requested records in their entirety. On January 17, 2014,
after the within action had commenced, the OGC responded by letter to Plaintiff’s November 11,
2013 administrative appeal. The OGC granted Plaintiff’s appeal, in part, and released some
partially-redacted responsive documents. Specifically, the OGC released the Price Evaluation
Report and the Source Selection Board Report, but redacted information encompassing the summary
or list of all total bids/offers submitted on the Project (“Bid Abstract”). The OGC also upheld the
IDA’s decision to withhold the IGE. After summary judgment briefing by the parties, on September
24, 2014, this court issued an Order (ECF No. 21), granting in part and denying in part Defendant’s
Motion for Summary Judgment (ECF No. 9) and granting in part and denying in part Plaintiff’s
Cross-Motion for Summary Judgment (ECF No. 14). Specifically, this court held that “construing
the evidence in the light most favorable to Defendant . . . the Bid Abstract was improperly withheld
under FOIA Exemption b(4),” and “[c]onstruing the evidence in the light most favorable to Plaintiff,
. . . the Independent Government Estimate was properly withheld under FOIA exemption b(5).”
(Id.)
On October 22, 2014, Defendant filed a Motion to Alter or Amend Judgment (ECF No. 23),
which the court denied (ECF No. 26). Subsequently, Plaintiff filed the instant Motion for Fees,
seeking an award of $61,352.18 pursuant to the FOIA fee provision, 5 U.S.C. § 552(a)(4)(E)(i).
Defendant opposes Plaintiff’s interpretation of this provision, arguing that Plaintiff is not entitled
to an award and that Plaintiff’s requested fees are excessive and unsupported by the evidence.
II. PLAINTIFF’S ELIGIBILITY AND ENTITLEMENT TO FEES AND COSTS
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FOIA provides, in pertinent part, that, “[t]he 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.” 5 U.S.C. § 552(a)(4)(E)(i). To determine
whether fees and costs should be granted under this provision, courts apply a two-part test. GMRI,
Inc. v. EEOC, 149 F.3d 449, 451 (6th Cir. 1998). Courts first “decide whether the plaintiff
‘substantially prevailed’ and is thus eligible for such an award.” Id. (citing Maynard v. CIA, 986
F.2d 547, 568 (1st Cir. 1993)). The 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 plaintiff is eligible for an award, courts
“then determine whether the plaintiff is entitled to such an award based upon a balancing of
equitable considerations.” GMRI, 149 F.3d at 451 (citing Maynard, 986 F.2d at 568).
A. Eligibility
Defendant “concedes that Plaintiff substantially prevailed” with respect to the Bid Abstract.
(Opp’n at 3, ECF No. 30.) However, Defendant contends that under Falcone v. Internal Revenue
Service, 714 F.2d 646 (6th Cir. 1983), “Plaintiff, as a pro-se attorney plaintiff, is ineligible to receive
fees for his work.” (Id.) Plaintiff argues that he made the FOIA request and filed the action on
behalf of his client, LTJV, not as a pro se litigant attorney on behalf of himself, and thus the
concerns in Falcone are inapplicable. Plaintiff further distinguishes Defendant’s citation to Burka
v. U.S. Dep’t of Health & Human Servs., 142 F.3d 1286 (D.C. Cir. 1998), which held that a pro se
attorney-litigant is not entitled to fees under FOIA even if the attorney claims to represent an
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“undisclosed client,” arguing that Plaintiff disclosed his client, LTJV, throughout the litigation. The
court declines to extend Falcone and Burka to the facts of this case.
In Falcone, the Sixth Circuit held that “pro se FOIA plaintiffs who also happen to be
attorneys” are not entitled to attorneys’ fees. 714 F.2d at 646 (emphasis in the original). One
rationale was that the FOIA fee provision “was intended to relieve plaintiffs with legitimate claims
of the burden of legal costs[,]” and a pro se litigant who happens to be an attorney is not entitled to
compensation of fees and costs that were never incurred. Id. at 647. Another rationale was that the
provision “was intended to encourage potential claimants to seek legal advice before commencing
litigation” to prevent unnecessary litigation, and an attorney representing himself would not have
the necessary “detached and objective perspective.” Id. A final reason was the fear that claimants
would use the provision “solely as a way to generate fees.” Id. at 648. Further, citing to Falcone,
the District of Columbia Circuit decided that the plaintiff in Burka was a pro se attorney-litigant and
“the real party-in-interest,” despite his claim that he was representing an undisclosed client. Burka,
142 F.3d at 1290-91.
Here, unlike Burka, Plaintiff repeatedly disclosed that he submitted the FOIA request and
filed the instant action on behalf of his client, LTJV. (Compl. at ¶¶ 5, 9, ECF No. 1; Pl.’s Cross Mot.
Summ. J. at 2, ECF No. 14; Pl.’s Reply Supp. Cross Mot. Summ. J., ECF No. 20, at 5.) Defendant
has expressly acknowledged this attorney-client relationship. (Def.’s Mem. Supp. Summ. J. at 1,
ECF No. 9-1.) Although Plaintiff did not explicitly reference LTJV in his original FOIA request,
it is clear that Plaintiff disclosed his client, LTJV, and its interests since the start of this litigation.
LTJV is the “real party-in-interest” and the proper focal point of the fees inquiry. Since an attorney-
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client relationship exists here, the concerns in Falcone, Burka and Defendant’s other cited cases do
not fit. Thus, Plaintiff, on behalf of his client LTJV, is eligible for an award under FOIA.
B. Entitlement
Once the court determines eligibility for an award under FOIA’s fee provision, the court
should consider at least the following factors for making a determination of entitlement to the award:
“[1] the benefit to the public deriving from the case; [2] the commercial benefit to the complainant
and the nature of its interest in the records; and [3] whether the agency’s withholding [of the records]
had a reasonable basis in law.” GMRI, 149 F.3d at 452 (quoting Detroit Free Press, Inc. v.
Department of Justice, 73 F.3d 93, 98 (6th Cir. 1996)). This determination “rests within the sound
discretion of the district court.” Id.
1. Public Benefit
Plaintiff argues that release of these records benefits the public because it is “a ‘vindication
of the [FOIA] itself,’ where an agency ‘improperly refused to comply with the Act[,]’” citing Seegull
Mfg. Co. v. NLRB, 741 F.2d 882, 886 n.1 (6th Cir. 1984). (Mot. for Fees at 8, ECF No. 28.)
Plaintiff contends that this case benefits the public because it sheds light on Defendant’s cost
proposal analysis and bid review process, and it assists contractors in their claims under the CDA.
There is certainly “some slight public benefit in bringing the government into compliance
with FOIA and providing information of general interest to the public.” Davidson v. Bureau of
Prisons, 931 F. Supp. 2d 770, 778 (E.D. Ky. 2013). However, “compliance which merely aids a
private party does not really expand the fund of public information or benefit the public interest.”
Werner-Cont’l, Inc. v. Farkas, 478 F. Supp. 815, 817 (S.D. Ohio 1979) (citing Blue v. Bureau of
Prisons, 570 F.2d 529 (5th Cir. 1978)); see also 5 U.S.C. § 552(a)(4)(A)(iii) (definition of public
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interest in the FOIA standard for granting a fee waiver). Furthermore, “released documents have
an insufficient public benefit when they pertain to such highly particularized interactions with an
agency that non-participants would have only a limited interest in the records as a means of learning
what the agency was doing.” Dorsen v. United States SEC, 15 F. Supp. 3d 112, 121 (D.D.C. 2014);
see also Dean v. FDIC, No. 04-371-KSF, 2006 WL 2692711, at *3 (E.D. Ky. Sep. 15, 2006) (public
benefit factor “requires more than just a generalized public interest” in vindicating FOIA).
In Seegull, the defendant conveyed “the impression that only a lawsuit could wrest the
materials from its grasp,” and the court found that “the duplicity inherent in [its] contention that the
release of the document was unrelated” to the FOIA action was dishonest and that defendant was
not forthright in its dealings with FOIA applicants. 741 F.2d at 885. Here, Defendant’s actions
were, as this court previously stated, “far from ideal.” (Order at 11, ECF No. 21.) Defendant shifted
from one exemption to another regarding the Bid Abstract, and Defendant did not respond to
Plaintiff’s second appeal within the statutory timeframe. However, Defendant’s argument shifting
did not “rise[] to the level of unfairness[.]” (Order at 11, ECF No. 21.)
While there is public benefit in bringing Defendant into compliance with the FOIA and
providing some public knowledge to the Navy’s bid review process, and perhaps assisting
contractors generally with their CDA claims, the information at issue is highly particularized to a
specific contract. Additionally, the information requested was sought for the private benefit of
Plaintiff’s client, LTJV, in its contract dispute against Defendant. Thus, on balance, the court finds
that this factor neither favors nor disfavors an award of attorneys’ fees.
2. Commercial Benefit and Nature of Plaintiff’s Interest
Plaintiff argues that this factor should be weighed in LTJV’s favor because this case is
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similar to Seegull. Plaintiff also contends that LTJV is not seeking to profit from the records but
merely to reform or rescind its contract. Plaintiff further argues that it is only doing what it has to
in order to comply with the CDA and other federal laws. Defendant disagrees.
In Seegull, plaintiff filed a FOIA request seeking documents to support a defense to the
Equal Pay Act complaint an employee brought against plaintiff, alleging that she received unequal
pay. 741 F.2d at 883. One of the defendant’s arguments was that plaintiff’s interest in the records
was commercial, and the Sixth Circuit found that the materials sought by plaintiff were “otherwise
undiscoverable information for use in a civil action[,]” and “[t]he district court did not abuse its
discretion in concluding that this private interest was commercially neutral for the purposes of the
attorney fee award provision.” Id. at 886. Some courts have concluded that fees should not be
awarded in a FOIA case “where the plaintiff’s self-interest was the primary factor in bringing the
suit.” W. Energy All. v. United States Fish & Wildlife Serv., 608 F. App’x 615, 619 (10th Cir. 2015)
(quoting Anderson v. Secretary of HHS, 80 F.3d 1500, 1505 (10th Cir. 1996)).
Here, like in Seegull, the withheld records seemed undiscoverable because Defendant’s
position was that they were exempt from disclosure even under FOIA. However, LTJV seeks to use
the records in support of LTJV’s contract claim against Defendant, which is more of a commercial
nature as compared to defending an unequal pay lawsuit. Furthermore, Plaintiff’s interest in the
records is private and self-interested, rather than public in nature. Balancing the undiscoverable
aspect of the records and the commercial and private nature of Plaintiff’s interest, the court finds that
this factor is neutral as to an award of fees under FOIA.
3. Reasonable Basis in Law for Withholding the Records
Although none of the factors should be given dispositive weight, it is proper to award
attorney fees if the government’s withholding of records “had no reasonable basis in law.” Am.
Commercial Barge Lines Co. v. NLRB, 758 F.2d 1109, 1111 (6th Cir. 1985). The question “is not
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whether the document was exempt but whether the [defendant] had a reasonable basis in law for
considering it exempt.” Id. at 1112. Courts have stated that “the government’s position need not
be correct to qualify as reasonable.” Peter S. Herrick’s Customs & Int’l Trade Newsletter v. United
States Customs & Border Prot., No. 04-0377, 2006 WL 3060012, at *9 (D.D.C. Oct. 26, 2006)
(citing Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979)).
Here, Defendant had a reasonable basis for withholding IGE, as this court found that the IGE
was exempt from disclosure under the FOIA. (Order at 17-20, ECF No. 21.) Furthermore, while
the court found that the Bid Abstract was not exempt under FOIA, Defendant pointed the court to
a reasonable exemption and provided affidavits supporting that claim. Although the court found that
the affidavits were insufficient to meet the exemption, Defendant’s position was reasonable, though
incorrect. Plaintiff also points to Defendant’s delay in releasing the records and its argument
shifting as examples of unreasonable conduct. Defendant’s conduct is concerning. However,
Defendant did point to specific, reasonable exemptions as the bases for its withholdings. Although
Defendant later released partially-redacted, responsive records, agreeing with Plaintiff that not all
of the exemptions applied, the court does not find that Defendant had no reasonable basis in law for
considering the documents exempt.
Since the court could not conclude that Defendant acted with no reasonable basis in law, and
the public benefit factor and the commercial benefit and nature of the Plaintiff’s interests factor do
not weigh in favor of awarding fees and costs, the court denies Plaintiff’s Motion for Fees.
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III. CONCLUSION
For the foregoing reasons, the court denies Plaintiff James Weikamp’s Motion for Attorneys’
Fees and Costs (ECF No. 28).
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
March 29, 2016
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