Baker v. U.S. Department of Homeland Security (U.S. Secret Service)

Filing 37

MEMORANDUM re 30 MOTION for Attorney Fees pursuant to 5 U.S.C. §552(a)(4)(E) filed by David M. Baker Signed by Honorable A. Richard Caputo on 11/19/12. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID M. BAKER,
CIVIL ACTION NO. 3:11-CV-588
Plaintiff,
(JUDGE CAPUTO)
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY (U.S. SECRET
SERVICE),
Defendant.
MEMORANDUM
Presently before the Court is Plaintiff David M. Baker’s Motion for Attorney’s Fees
Pursuant to 5 U.S.C. § 552(a)(4)(E). (Doc. 30.) Baker, an employee of the United States
Secret Service, brought this action under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, et seq., seeking to compel his employer to comply with his FOIA request. Because
Baker is both eligible and entitled to recover attorney’s fees, his motion will be granted.
BACKGROUND
Plaintiff David M. Baker filed his Complaint in this Court on March 29, 2011. The
purpose of his Complaint was to compel the United States Department of Homeland
Security to comply with his April 8, 2009 Freedom of Information Act (“FOIA”) request made
pursuant to 5 U.S.C. § 552. Baker is an employee of the United States Secret Service, and
his FOIA request sought to unearth, in pertinent part, “[f]ull and complete copies of any and
all documents/records/files whatsoever relating to [his] current, ongoing dispute with the
United States Secret Service regarding [his] service in the Reserve Component of the
United States Navy . . . .” (Pl.’s Ex. A, Doc. 21-1).

The Secret Service’s Freedom of Information and Privacy Acts (“FOI/PA”) Office
received Baker’s request on April 24, 2009 and returned acknowledgment of the request
in an April 29, 2009 letter. The FOI/PA Office for the Secret Service conducted a search
of their online computer system, which is comprised of five separate databases. This
search uncovered only two files pertaining to Baker, and both were deemed unresponsive
to the scope of his request. On April 24, 2009, per Baker’s FOIA request, the FOI/PA Office
also forwarded search requests to: (1) the Office of Human Resources and Training, Office
of the Assistant Director; (2) the Personnel Division; and (3) the Office of Chief Counsel.
The Personnel Division forwarded responsive documents to the FOI/PA Office on April 27,
2009, and the Office of Chief Counsel did likewise on May 18, 2009.
In his declaration, Craig W. Ulmer, the FOI/PA Officer for the Secret Service, avers
that while the Office of Human Resources could not locate any responsive records, the
other two aforementioned offices forwarded the documents they determined as responsive
to the FOI/PA Office for review. (Ulmer Decl. at ¶¶ 15-17, Doc. 12.) Later, on March
10–11, 2010, the FOI/PA Office sent further requests to the Philadelphia Field Office and
the Scranton Resident Office. (Id. at ¶ 18.) The Philadelphia Office uncovered no
responsive records. (Id. at ¶ 19.) The Scranton Office initially failed to respond, and a
subsequent request made in October of 2011 prompted that Office to forward its responsive
records to the FOI/PA Office. (Id. at ¶ 20.) Lastly, in October 2011, the FOI/PA contacted
Human Resources Specialist Beverly Steadman of the Special Agent and Uniformed
Division Support Branch as it was determined that she had spoken with Baker about the
subject of his request. (Id. at ¶ 21.) However, this uncovered no additional responsive
documents. (Id.)
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On February 11, 2010, Baker wrote to Ulmer, inquiring as to the status of his request
and reminding the FOI/PA Office that their delay was in violation of the time frame
prescribed by law. (Pl.’s Ex. C, Doc. 21-1 at 3.) Ulmer responded on February 16, 2010,
informing Baker that his file was being reviewed for release. (Pl.’s Ex. D, Doc. 21-1 at 4.)
Ulmer wrote Baker again on March 12, 2010, referencing a conversation Baker had with a
member of Ulmer’s staff, noting that Baker’s FOIA request had “generated a voluminous
amount of records,” and presenting Baker with the option of partial releases or “one
complete response package.” (Pl.’s Ex. E, Doc. 21-1 at 5.) Baker wrote back on March 18,
2010, requesting clarification of the status of his request, specifically as to the delay in the
initial determination letter. (Pl.’s Ex. F, Doc. 21-1 at 6.) Receiving no response, Baker
reiterated his concerns about his request to William H. Holzerland, the Associate Director
for Disclosure Policy & FOIA Program Development, in a May 18, 2010 email. (Pl.’s Ex. G,
Doc. 21-1 at 8.) After a few exchanges, Holzerland wrote on July 7, 2010 that the final
touches were being made to Baker’s report and that “there appear[ed] to be light at the end
of the tunnel.” (Pl.’s Ex. I, Doc. 21-1 at 10.)
On April 21, 2011—over three weeks from the filing of the instant suit and almost two
years from the filing of his initial request—the FOI/PA Office made its first disclosure in
response to Baker’s FOIA request. (Def.’s Ex. C, Doc. 12.) On November 4, 2011, the
FOI/PA Office made a subsequent disclosure of five documents that had been previously
withheld in full or in part,1 and also disclosed all seven additional pages in full that were

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This included releasing in full two documents that had been previously withheld in
full, releasing in part two documents that had been previously withheld in full, and
releasing an additional part of a document that had been previously withheld in part.
(Ulmer Decl. at ¶ 26, Doc. 12).

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determined responsive from the Scranton Office. (Ulmer Decl. at ¶¶ 26-28, Doc. 12.) In
total, after reviewing all documents flagged as responsive pursuant to the Freedom of
Information and Privacy Acts, the FOI/PA Office ultimately compiled a total of 1,935 pages
of responsive documents. (Id. at ¶ 30, Doc. 12.) Of these, 1,804 were produced in full, 30
were produced in part, and 101 were withheld in full. (Id.) The 101 withheld pages were
retained under the Privacy Act’s exemption as to “information compiled in reasonable
anticipation of a civil action or proceeding,” 5 U.S.C. § 552a(d)(5), as well as the FOIA
exemption for attorney work product, 5 U.S.C. § 552(b)(5). (Id. at ¶ 31.) Of the thirty
redacted pages, twenty-three were redacted solely as to exemption (b)(5) (attorney work
product), four solely under exemptions (b)(6) and (b)(7)(C) (unwarranted invasions of
personal privacy), one under (b)(2) (internal agency practices), and two under exemptions
(b)(2), (b)(6) and (b)(7)(C). (Id. at ¶ 32.)
On November 7, 2011, the Secret Service, representing that their complete FOIA
disclosure to Baker rendered the action moot, motioned to dismiss, or in the alterative, for
summary judgment, against his claims. (Def.’s Mot., Doc. 8.) In its Memorandum dated
January 24, 2012, this Court ruled that although Baker’s claim, to the extent that it sought
to compel the Secret Service to respond to the FOIA request, was rendered moot by the
document production, the Secret Service was required to submit an appropriately detailed
Vaughn index2 pertaining to the withheld materials within sixty days. (Doc. 23 at 6–7.)

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“A Vaughn index is an index correlating each withheld document, or a portion
thereof, with a specific exemption and relevant part of an agency's justification for
nondisclosure. The Vaughn index is a tool designed to aid the court in determining
whether the agency has properly withheld the information requested.” Davin v. U.S.
Dept. of Justice, 60 F.3d 1043, 1065 n.1 (3d Cir. 1995) (citing Vaughn v. Rosen, 484
F.2d 820 (D.C.Cir.1973)).

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On May 5, 2012, Baker filed his Motion for Attorney’s Fees Pursuant to 5 U.S.C. §
552(a)(4)(E). The motion has now been fully briefed and is ripe for review.
DISCUSSION
I. Legal Standard
FOIA is a statute “enacted to facilitate public access to Government documents.”
Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). A federal agency that receives a FOIA
request must determine within twenty working days whether to release the requested
documents. 5 U.S.C. § 552(a)(6)(A)(I). Although an agency may seek a brief extension of
this deadline, 5 U.S.C. § 552(a)(6)(B), it may only continue to withhold relevant records if
they fall within one or more of the statute’s nine exemptions. 5 U.S.C. § 552(b)(1)–(9).
Under FOIA, the court may assess “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). In deciding whether an award of
attorney’s fees is appropriate, the court must undertake a two-step inquiry. The first step
is determining whether the plaintiff is “eligible” for attorney’s fees, i.e., whether the plaintiff
has “substantially prevailed” on his FOIA claim. Calypso Cargo Ltd. v. U.S. Coast Guard,
850 F.Supp.2d 1, 3 (D.D.C. 2011) (citing Brayton v. Office of the U.S. Trade Representative,
641 F.3d 521, 524 (D.C. Cir. 2011)). A plaintiff “substantially prevails” if he “has obtained
relief through either . . . a judicial order, or 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.” 5 U.S.C. § 552(a)(4)(E)(ii).
If the court finds that the plaintiff has substantially prevailed and is eligible to receive
attorney’s fees, it must then determine whether the plaintiff is “entitled” to attorney’s fees.
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Calypso Cargo, 850 F. Supp.2d at 3 (citing Weisberg v. United States Dep’t of Justice, 745
F.2d 1476, 1495, 1498 (D.C. Cir. 1984)). In making that determination, the court considers
and balances four factors: (1) the benefit of the release to the public; (2) the commercial
benefit of the release to the plaintiff; (3) the nature of the plaintiff’s interest in the records;
and (4) the reasonableness of the agency’s withholding. Weisberg, 745 F.2d at 1498 (citing
Church of Scientology of Cal. v. Harris, 653 F.2d 584, 590 (D.C. Cir. 1981)). “No one factor
is dispositive.” Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 1992). “[E]ntitlement is at the
discretion of the district court.” Md. Dep’t of Human Res. v. Sullivan, 738 F.Supp. 555, 563
(D.D.C. 1990). Furthermore, “[a]n agency cannot foreclose an award of attorney’s fees and
costs by complying with a FOIA request during the pendency of litigation.” Id. at 653 (citing
Cuneo v. Rumsfeld, 553 F.2d 1360, 1365 (D.C. Cir. 1977)).
II. Eligibility
The first step in deciding whether an award of attorney’s fees is appropriate in this
case requires a determination of whether Baker is “eligible” for attorney’s fees, that is,
whether he has “substantially prevailed” on his FOIA claim. Calypso Cargo Ltd. v. U.S.
Coast Guard, 850 F.Supp.2d 1, 3 (D.D.C. 2011) (citing Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 524 (D.C. Cir. 2011)). Baker “substantially prevails” if he
“has obtained relief through either . . . a judicial order, or 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.” 5 U.S.C. § 552(a)(4)(E)(ii). Here, Baker contends
that he has substantially prevailed in both ways.
A. Judicial Order
Baker first asserts that he obtained relief through a judicial order because this Court,
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in its Memorandum of January 24, 2012, directed the Secret Service to submit a Vaughn
index. (Doc. 32 at 6.) The Secret Service responds that Baker has not obtained relief
through a judicial order because this Court has neither ordered the it to release any
information nor found that it improperly withheld documents from Baker. (Doc. 35 at 5–6.)
“A favorable order does not make a plaintiff a prevailing party unless the order
constitutes judicial relief on the merits resulting in a ‘court-ordered change in the legal
relationship between the plaintiff and the defendant.’” Campaign for Responsible
Transplantation v. Food & Drug Admin., 511 F.3d 187, 194 (D.C. Cir. 2007) (quoting
Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S.
598, 604 (2001)). In Campaign for Responsible Transplantation, the United States Court
of Appeals for the District of Columbia Circuit said that “Vaughn indices are not properly
understood as relief on the merits for a FOIA plaintiff.” 511 F.3d at 196. Noting that a
Vaughn index’s main purpose is to facilitate the litigation process, the court continued that,
“[a] Vaughn index, without more, does not constitute court-ordered relief for a plaintiff on
the merits of its FOIA claim, so it does not change the legal relationship between the plaintiff
and the defendant.” Id. The court concluded that “an order compelling the production of
a Vaughn index, without more, is not enough to make a plaintiff a ‘prevailing party’ sufficient
to support a claim for attorney’s fees.” Id.
Therefore, because an order compelling the production of a Vaughn index is not
court-ordered relief for Baker, he has not substantially prevailed by obtaining relief through
a judicial order and is ineligible to receive attorney’s fees on that grounds.
B. Voluntary or Unilateral Change in Position
Baker also asserts that the Secret Service took a voluntary or unilateral change in
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position by releasing the requested documents in response to this litigation. (Doc. 32 at 6.)
He maintains that his claim was not insubstantial, citing the Department of Homeland
Security’s stated emphasis on the satisfaction of releasing documents in response to FOIA
requests as well as the requested information’s relation to his Uniformed Services
Employment and Reemployment Rights Act (“USSERRA”) case before the Merit Service
Protection Board (“MSPB”). (Id. at 6–7.)
In response, the Secret Service argues that the release of the requested documents
was not made in response to Baker’s FOIA complaint. (Doc. 35 at 7.) It notes that it began
processing Baker’s FOIA request within a week of receiving it in April 2009 and had located
nearly 2,000 pages of responsive documents that were awaiting final review in the FOI/PA
Office as of March 29, 2011, when Baker filed his FOIA complaint. (Id. at 12–13.) The
Secret Service also points to the declaration of Latita Payne, a Disclosure Officer in its
FOI/PA Office, in which she stated that the responsive documents were not released in
response to the instant litigation. (Id. at 13.)
To prove that Baker substantially prevailed because of a voluntary or unilateral
change in position by the Secret Service, he must show that “prosecution of the action could
reasonably be regarded as necessary to obtain the information, and that a causal nexus
exists between the action and the agency’s surrender of that information.” Church of
Scientology of Cal. v. Harris, 653 F.2d 584, 588 (D.C. Cir. 1981) (internal citations omitted);
see also Short v. U.S. Army Corps of Eng’rs, 613 F.Supp.2d 103, 106 (D.D.C. 2009).
Although the Secret Service cannot prevent an award of attorney’s fees simply by releasing
the requested documents before Baker obtained a court order, as is the case here, “the
mere filing of the complaint and the subsequent release of the documents is insufficient to
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establish causation.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1496 (D.C. Cir.
1984). Baker must show something more than post hoc, ergo propter hoc. Public Law
Educ. Inst. v. U.S. Dep’t of Justice, 744 F.2d 181, 183 (D.C. Cir. 1984). If, rather than the
threat of an adverse court order, “an unavoidable delay accompanied by due diligence in
the administrative process was the actual reason for the agency’s failure to respond to a
request, then it cannot be said that the complainant substantially prevailed in his suit.”
Church of Scientology, 653 F.2d at 588 (internal citations omitted).
Here, the Court is persuaded that Baker has shown that the prosecution of the action
could reasonably be regarded as necessary to obtain the requested information. Baker did
not receive any communication from the Secret Service regarding the requested documents
between July 7, 2010, when he was told that “there appear[ed] to be light at the end of the
tunnel,” and March 29, 2011, when he filed this action. (Doc. 32 at 3–4.) By that point, it
had been nearly two years since he filed his FOIA request with the agency. (Id. at 1.)
Under these circumstances, Baker’s commencement and prosecution of this action can
reasonably be regarded as necessary to obtain the requested information from the agency.
Furthermore, Baker has shown a causal nexus between this action, which is not
insubstantial, and the release of the requested documents. Although the Secret Service
has detailed its activities in processing Baker’s FOIA request, there are several unexplained
gaps in its activity that do not appear to be the product of unavoidable delay. There is no
mention of any agency activity between sending search requests to the Personnel Division,
Office of Chief Counsel, and Office of Human Resources and Training in April 2009 and
sending search requests to the Philadelphia Field Office and Scranton Resident Office in
March 2010. (Doc. 35 at 2–3.) Additionally, there is no explanation for why the agency did
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not send a follow-up search request to the Scranton Resident Office until October 2011,
more than a year and a half after the initial request was sent. (Id.) The Secret Service’s
FOI/PA Office released the responsive documents to Baker on April 21, 2011, three weeks
after this action was filed and more than two years after his FOIA request was filed. (Id. at
4.) Before the release, Baker had not heard from the Secret Service about the status of his
request since July 2010, when he was told that the final review of the relevant documents
was complete. (Doc. 32 at 3–4.) Baker has shown that the release of the documents is
more than a case of post hoc, ergo propter hoc. He has shown a causal nexus between
this action and the release of the requested information and, accordingly, has proven that
he substantially prevailed because of a voluntary or unilateral change in position by the
Secret Service. Therefore, he is eligible for attorney’s fees in this case.
III. Entitlement
As this Court has decided that Baker is eligible for attorney’s fees, it must now
determine whether he is “entitled” to them. Calypso Cargo, 850 F. Supp.2d at 3 (citing
Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1495, 1498 (D.C. Cir. 1984)).
In making that determination, the following four factors must be considered and balanced:
(1) the benefit of the release to the public; (2) the commercial benefit of the release to the
plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the reasonableness
of the agency’s withholding. Weisberg, 745 F.2d at 1498 (citing Church of Scientology of
Cal. v. Harris, 653 F.2d 584, 590 (D.C. Cir. 1981)). “No one factor is dispositive,” Davy v.
CIA, 550 F.3d 1155, 1159 (D.C. Cir. 1992), and “entitlement is at the discretion of the
district court.” Md. Dep’t of Human Res. v. Sullivan, 738 F.Supp. 555, 563 (D.D.C. 1990).

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A. Benefit to the Public
The first factor “speaks for an award (of attorney’s fees) where the complainant’s
victory is likely to add to the fund of information that citizens may use in making vital political
choices.” Fenster v. Brown, 617 F.2d 740, 744 (1979) (quoting Blue v. Bureau of Prisons,
570 F.2d 529 (5th Cir. 1978)). Here, Baker information sought related to his case before
the MSPB, which alleged that the Secret Service violated USSERRA by discriminating
against him based on his military status. (Doc. 32 at 1–2, 7–8; Baker v. Dep’t of Homeland
Security, 2009 M.S.P.B. 83). Baker won his appeal before the MPSB, which found that he
was entitled to a hearing before an administrative judge. Baker, 2009 M.S.P.B. 83 at *8.
Although Baker’s FOIA request encompassed information relating to his dispute with the
Secret Service, the release of information in this case, especially when viewed in light of his
MSPB victory, is likely to assist military personnel working within the federal government.
B. Commercial Benefit to the Plaintiff and Nature of Plaintiff’s Interest
The second and third factors, the commercial benefit to Baker and the nature of his
interest in the records, are frequently considered together. Calypso Cargo Ltd. v. U.S.
Coast Guard, 850 F.Supp.2d 1, 6 n.2 (D.D.C. 2011). The proper question here is “whether
the potential for private commercial benefit was sufficient incentive to encourage [plaintiff]
to pursue his FOIA claim.” Alliance for Responsible CFC Policy, Inc. v. Costle, 631 F.Supp.
1469, 1471 (D.D.C. 1986) (internal citations omitted). Baker’s motive in litigating this case
under FOIA was not commercial, but rather investigatory. Given that Baker filed this suit
even after his case before the MSPB was resolved, his motivation was not to accumulate
information that would assist him in litigating that matter and obtaining damages. See
Muffoletto v. Sessions, 760 F.Supp. 268, 277 (E.D.N.Y. 1991). Instead, he sought to
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uncover information relating to the agency’s potentially discriminatory action of requiring
certain personnel to change their military designation status—information that was likely to
assist military personnel working within the federal government.
C. Reasonableness of the Agency’s Withholding
In analyzing the final factor, the reasonableness of the agency’s withholding the
information, “there must be a showing that the ‘government had a reasonable basis in law
for concluding that the information in issue was exempt and that it had not been recalcitrant
or otherwise engaged in obdurate behavior.’” Weisberg v. U.S. Dep’t of Justice, 745 F.2d
1476, 1498 (D.C. Cir. 1984) (citing Cuneo v. Rumsfeld, 553 F.2d 1360, 1366 (D.C. Cir.
1979)). The Court must focus on “the propriety of any withholding of documents by the
agency, and not on the adequacy of the agency’s search efforts.” Costle, 631 F.Supp. at
1471 (citing Weisberg, 745 F.2d at 1498).
Although the Secret Service appears to have a reasonable basis in law for
withholding and redacting the documents that it did, as Baker has not challenged the
Vaughn index in any way, there is ample evidence that the agency was recalcitrant or
obdurate in releasing the requested information to him. It took the Secret Service two years
from the date of Baker’s FOIA request to provide him with the requested information. After
advising Baker in July 2010 that a final review of his documents was complete and final
changes were being made, the agency did not contact him until April 2011, when it released
the documents to him. The documents were not accompanied by a Vaughn index, which
prevented Baker from determining whether the agency properly withheld or redacted certain
requested information. The Secret Service has given no rationale for this behavior.
Therefore, this Court is convinced that the agency was recalcitrant and obdurate in
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responding to Baker’s FOIA request.
Considering the factors as a whole, this Court finds that Baker is entitled to
attorney’s fees in this case.
IV. Calculation of Attorney’s Fees
Turning to attorney’s fees, Baker’s attorney, Mr. Scott E. Schermerhorn, Esq., has
submitted a detailed billing statement which states that he charges an hourly fee of
$225.00 and has spent 39.68 hours on this case. However, a careful examination of his
billing statement reveals that he actually spent 40.15 hours. 40.15 x 225 is $9,033.75.
When added to the $350.00 filing fee paid in this case, Schermerhorn’s fees and costs
total $9,383.75. The Secret Service does not address these charges in their opposition
to the motion. The Court finds the fee submitted reasonable, and will award the full
amount.
CONCLUSION
As Baker is both eligible for and entitled to attorney’s fees for the reasons given
above, the Court will grant his motion and award attorney’s fees and costs in full.
An appropriate order follows.

November 19, 2012
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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