SPEAKING TRUTH TO POWER v. UNITED STATES DEPARTMENT OF DEFENSE et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 6/9/15. 6/9/15 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SPEAKING TRUTH TO POWER
UNITED STATES DEPARTMENT OF
DEFENSE, et al.
June 9, 2015
Plaintiff Speaking Truth to Power (“STTP”) brings this
action under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, against the United States Department of Defense (“DOD”), Air
Force Air Combat Command (“ACC”), Department of Energy (“DOE”),
Office of the Secretary of Defense and Joint Staff (“OSD/JS”), and
National Nuclear Security Administration (“NNSA” and, together with
the other defendants, the “Government”).
STTP seeks information
related to certain incidents involving nuclear weapons.1
action has been consolidated with three other cases in which STTP
seeks similar information from other defense-related agencies.
Order dated March 25, 2014 (Doc. # 4).
Since the filing of the
complaint the Government has made several disclosures of responsive
information with classified material redacted.
STTP has not
objected to the production.
Before the court is the motion of STTP for the payment
of attorney’s fees and costs under 5 U.S.C. § 552(a)(4)(E)(i).
NNSA is a component of DOE, while ACC and OSD/JS fall within
burden of proof rests on STTP both as to eligibility and as to any
amount it is entitled to be awarded.
See Ginter v. Internal
Revenue Serv., 648 F.2d 469, 471 (8th Cir. 1981); Landano v. U.S.
Dep’t of Justice, 873 F. Supp. 884, 891 (D.N.J. 1994).
STTP does not come forward with any relevant evidence as
to entitlement under the statute.
The following facts are taken
from the complaint, the affidavits of certain government employees
submitted in response to the instant motion, or from the
STTP sent its FOIA request to ACC, DOE,
OSD/JS, and NNSA on January 20, 2014.
It sought information
related to so-called “Bent Spear” or “Dull Sword” reports.
Spear is a significant incident involving a nuclear weapon or
warhead, nuclear components, or a vehicle loaded with a nuclear
A Dull Sword refers to an incident involving nuclear
weapons which is less serious than a Bent Spear.
sought disclosures related to Bent Spear and Dull Sword reports
for the time period “before June 1992 and after October 2007.”
ACC, OSD/JS, and NNSA all responded within a matter of
days of receiving STTP’s request by assigning it a case number
and beginning the search for relevant documentation.
its complaint on February 27, 2014, less than a month after
these responses were sent.
In June 2014 DOE responded to STTP’s
STTP has not objected to any of the facts as set forth by the
FOIA request by explaining that it had no records under its
direct control and that NNSA was responding to STTP’s request.
Since the filing of the complaint, DOD, on behalf of
ACC and OSD/JS, has made responsive disclosures.
produced responsive documentation.
NNSA has also
After asking for and
receiving certain follow-up information, STTP has not challenged
any of these responses.
FOIA allows for the payment of attorney’s fees under
The statute provides:
“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.”
A plaintiff has “substantially prevailed” if he
or she has obtained relief through a judicial order; an
enforceable, written agreement or consent decree; or “a voluntary
or unilateral change in position by the agency, if the
complainant's claim is not insubstantial.”
Id. § 552(a)(4)(E)(ii).
In the instant matter the record does not disclose the
existence of a court order or a written agreement or consent decree
which led to the Government’s disclosures.
Thus, STTP can only
have substantially prevailed for purposes of attorney’s fees if it
can show that there has been “a voluntary or unilateral change in
position” by a government agency.
5 U.S.C. § 552(a)(4)(E)(ii).
Several courts have interpreted this provision to require a
plaintiff to show that “filing suit was necessary to obtaining the
information sought and ... that it caused the defendant to turn
over the information.”
See Wheeler v. Internal Revenue Serv., 37
F. Supp. 2d 407, 412 (W.D. Pa. 1998).
Again, STTP has not come forward with any facts to
establish that it has “substantially prevailed” as defined under
5 U.S.C. § 552(a)(4)(E)(ii).
It simply assumes that attorney’s
fees are appropriate because it had been negotiating with the
Government over a compromised amount.
As the Government notes,
however, offers of compromise are not proof of the validity of a
Fed. R. Evid. 408(a).
Nowhere does STTP argue
that the Government expressly conceded STTP’s eligibility for fees.
STTP has therefore failed to meet its burden under the statute.
For its part, the Government contends that it has made
no voluntary or unilateral change in position and thus STTP is
ineligible for counsel fees.
There is no evidence that the lawsuit
had any bearing on the information it disclosed.
has submitted the affidavits of employees of NNSA and DOD who were
involved in processing STTP’s FOIA requests.
They agree that the
information STTP obtained was the same as that which would have
been disclosed had the administrative process been allowed to
The filing of the lawsuit simply moved STTP’s requests
to the top of the pile.
The Government additionally contends that STTP did not
allow any reasonable amount of time for a response before filing
its complaint, particularly in light of the breadth and sensitivity
of the information sought.
STTP sought documents relating to
mishaps involving the nuclear arsenal of the United States for a
period of time that could conceivably have stretched as far back as
1945 and up to the present day.
According to the Government, such
a request involved a large search and required detailed review for
Nonetheless, STTP waited less than a month
after receiving responses from all of the agencies save DOE to file
We agree with the Government that STTP is ineligible for
the award of attorney fees.
STTP does not contest the Government’s
assertion that the disclosures would have been the same regardless
of whether a complaint had been filed.
At no point did any of the
agencies in question refuse to produce records, and STTP did not
challenge the documentation it received.
As a result we cannot
conclude that the lawsuit achieved any “voluntary or unilateral
change in position” or was necessary to obtain the information
See 5 U.S.C. § 552(a)(4)(E)(ii); Wheeler, 37 F. Supp. 2d
We further note that, in the absence of any exigent
circumstances or obduracy on the part of the target agencies, it is
inappropriate for information seekers to eschew the administrative
process in favor of premature litigation in federal court.
attorney’s fee provision in FOIA was not meant to encourage the use
of judicial resources in this fashion.
See Fund for Constitutional
Government v. Nat’l Archives, 656 F.2d 856, 871 (D.C. Cir. 1981);
Arevalo-Franco v. Immigration & Naturalization Serv., 772 F. Supp.
959, 961-62 (W.D. Tex. 1991).
Accordingly, the motion of STTP for an award of
attorney’s fees and costs will be denied.
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