Williams Mullen v. United States Army Criminal Investigation Command
Filing
89
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 7/6/2012. (rban, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
WILLIAMS MULLEN,
Plaintiff,
v.
UNITED STATES ARMY CRIMINAL
INVESTIGATION COMMAND,
Defendant.
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1:10cv262 (JCC/TCB)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendant United
States Army Criminal Investigation Command’s Motion for Summary
Judgment and on Plaintiff Williams Mullen’s Motion for
Attorneys’ Fees.
For the following reasons, the Court will
grant the Motion for Summary Judgment and deny the Motion for
Attorneys’ Fees.
I.
A.
Background
Factual Background
The case arises out of an alleged illegal withholding
of certain records by the United States Army Criminal
Investigation Command (USACIDC).
FOIA request on July 31, 2007.
Plaintiff filed its original
(Compl. ¶ 5; Ex. 1.)
USACIDC
denied that request on October 16, 2007, citing an active
1
investigation regarding Michael Hopmeier and Unconventional
Concepts, Inc. (UCI).
(Compl. ¶ 8; Ex. 3.)
On July 7, 2009,
Mr. Hopmeier received a letter from the DOJ stating that it had
completed its investigation of Mr. Hopmeier and UCI.
9; Ex. 4.)
(Compl. ¶
As a result, Plaintiff resubmitted its FOIA request
on August 31, 2009.
(Compl. ¶ 10; Ex. 5.)
USACIDC denied it on
September 29, 2009, again citing an active investigation.
(Compl. ¶ 11; Ex. 6.)
Plaintiff appealed to the Army Office of General
Counsel (Army OGC), but the Army OGC affirmed the decision on
January 8, 2010, again citing FOIA Exemption 7(A) and an active
law enforcement proceeding.
(Compl. ¶¶ 12, 14; Ex. 8.)
The
Army OGC explained that there was an ongoing, joint
investigation with several law enforcement agencies.
(Id.)
The
Army OGC stated, “USACIDC determined that the responsive records
should be withheld in their entirety under Exemptions 2, 6, 7(A)
and 7(C) . . . While Exemptions 2, 6, and 7(C) may support
withholding portions of the document, Exemption 7(A) supports
withholding the entire document, but is limited temporally.”
(Id.)
It noted, “[a]lthough this record cannot be released to
you presently, you may make another request for it when the law
enforcement proceedings have closed.”
(Id.)
Plaintiff
requested by letter that the Army OGC reconsider on January 26,
2010, but received no response.
(Compl. ¶ 15; Ex. 9.)
2
On March 17, 2010, Plaintiff filed a Complaint against
USACIDC for alleged FOIA violations.
1].)
(Compl. ¶¶ 16-17); [Dkt.
On May 4, 2010, the Court issued a scheduling order
directing the parties to finish discovery by September 10, 2010.
[Dkt. 10.]
On May 14, 2010, Defendant moved to vacate the
scheduling order and to stay the proceedings for ninety days to
allow it time to review and release documents previously
withheld due to the investigation.
[Dkts. 11-12.]
Defendant
submitted that USACIDC closed its investigation on April 15,
2010, and so it could produce documents previously withheld
under Exemption 7(A).
As a result, Defendant submitted that
“the action will essentially be moot once the release is
complete.”
(Id.)
Those documents fell into three categories: documents
from a 2005 investigation, the 2006 report of investigation (the
“2005 and 2006 Materials”), and approximately 37,000 pages of
field files from the investigation (the “Field Files”).
Stay [Dkt. 12] at 3.)
(Mot.
Defendant provided a cost estimate for
production of these files and twice asked for confirmation that
Plaintiff would pay the cost.
(Id.)
Plaintiff initially
refused but later agreed to pay for production of the 2005 and
2006 Materials.
(Mot. Stay at 4.)
Per Defendant’s request, the Court issued an Order on
June 14, 2010, staying proceedings until September 12, 2010.
3
[Dkt. 27.]
Defendant then produced redacted copies of both sets
of documents on June 11, 2010, and June 25, 2010, respectively,
but, at Plaintiff’s request did not produce the Field Files.
(Mot. Stay at 5.)
the Field Files.
On July 28, Plaintiff requested production of
(Mot. Stay at 5.)
The Court then granted
several enlargements of the stay period to allow USACIDC to
continue processing and releasing the responsive documents.
[Dkts. 40, 43, 46, 51, 54.]
The last order granting a stay was
on August 8, 2011, and it extended the time for production an
additional sixty days–-until October 7, 2011.
[Dkt. 54.]
The
Court further ordered Plaintiff to file an amended complaint
should any issues remained unresolved by that date.
(Id.)
On August 8, 2011, USACIDC advised the Court that it
had completed production of responsive documents on August 5,
2011.
[Dkt. 52.]
Yet, Plaintiff received another set of
documents on October 4, 2011 [Am. Compl. ¶ 16], and on November
3, 2011, it received approximately 181 additional pages (Opp. to
Mot. Vacate [Dkt. 64] at 5).
At that point in time, Defendant
released more than 41,000 pages of responsive documents,
approximately 23,763 of which were redacted or withheld in full
(the “2011 Release”).
Believing that production was completed on August 5,
2011, on August 10, 2011, Plaintiff requested via email
correspondence that USACIDC provide a Vaughn Index.
4
[Dkt. 55,
Ex. B.]
The Government responded that it would produce a Vaughn
Index with a summary judgment briefing scheduling order.
55, Ex. C.]
[Dkt.
Plaintiff replied that it sought to avoid
compelling the production of the index through a Court hearing,
and that only after reviewing the index could it determine to
voluntarily dismiss the case or file an amended complaint
objecting to the Government’s withholdings.
[Dkt. 55, Ex. D.]
The parties continued to exchange communication about the Vaughn
Index, but were unable to come to an agreement regarding its
production.
[Dkt. 55, Exs. D-F.]
As a result of their inability to come to an agreement
on a Vaughn Index, and the continued production of documents,
Plaintiff filed an Amended Complaint on October 7, 2011.
55.]
[Dkt.
The Amended Complaint, in part, requested the Court to
compel Defendant’s production of a full Vaughn index.
(Id.)
On
November 3, 2011, Defendant also filed a Motion to set a Summary
Judgment Briefing Schedule [Dkt. 63] and a Motion for Leave to
File a Representative Sampling [Dkt. 60].
On November 22, 2011, this Court ordered USACIDC to
provide a Vaughn Index based on a representative sample of
documents that were either released with redactions or withheld
in full.
[Dkt. 68.]
Pursuant to this Court’s orders, Defendant
completed its production and submitted a Vaughn index.
As a
result, on February 21, 2012, Defendant filed a Motion for
5
Summary Judgment.
[Dkt. 70.]
On April 27, 2012, Defendant
filed a Praecipe, notifying the Court that it had released
additional documents that were responsive to the request (the
“2012 Release”).
[Dkt. 74.]
USACIDC submits that during its
preparation of the Vaughn Index, it identified documents, or
parts of documents, that should not have been withheld.
(Praecipe [Dkt. 74] ¶ 1.)
USACIDC states, that in reliance on
the Supreme Court’s decision in FCC v. AT&T, 131 S. Ct. 1177
(2011), which affected the definition of a corporation in FOIA
Exemption 7(C), it reviewed all responsive documents and
identified documents withheld pursuant to FOIA Exemptions 6 and
7(C).
(Praecipe ¶ 3; Decl. Kardelis [Dkt. 74-2] (“Decl.
Kardelis B”) ¶ 7.)
Those documents were reviewed to identify
company documents that were withheld pursuant to FOIA Exemptions
6 and 7(C).
(Id.)
And, during this review, USACIDC also
identified some documents that pertained to Mr. Hopmeier that
were withheld in full pursuant to FOIA exemptions 6 and 7(C).
(Id.)
(Mr. Hopmeier had previously submitted a waiver to the
indexing of personal information.)
As a result of that review,
USACIDC identified approximately 906 pages of documents that
were withheld in full or in part pursuant to FOIA exemptions 6
and 7(C) that could be released.
B ¶ 9.)
(Praecipe ¶ 4; Decl. Kardelis
USACIDC also identified a handful of other documents
that could be released in part or in full.
6
(Praecipe ¶¶ 5-6.)
USACIDC provided a second Vaughn Index for all documents in this
supplemental release.
B.
(Praecipe ¶ 4.)
Procedural Background
On March 17, 2010, Plaintiff filed its Complaint [Dkt.
1], which was amended on October 7, 2011 [Dkt. 55].
On February
21, 2012, Defendant filed a Motion for Summary Judgment.
70.]
[Dkt.
On May 21, 2012, Plaintiff filed an Opposition to the
Motion for Summary Judgment.
[Dkt. 75.]
Also, on May 21, 2012,
Plaintiff filed a Motion for Attorneys’ Fees [Dkt. 76],
requesting attorneys’ fees and other litigation costs pursuant
to 5 U.S.C. § 552(a)(4)(E).
On June 4, 2012, Defendant filed
Opposition to the Motion for Attorneys’ Fees.1
[Dkt. 81.]
On
June 7, 2012, Plaintiff filed a Rebuttal to the opposition.
[Dkt. 82.]
On June 12, 2012, Plaintiff filed a Notice of
Objection, claiming that Defendant, in its Opposition to the
Motion for Attorneys’ Fees, disclosed confidential information
from a settlement negotiation.
[Dkt. 84.]
Plaintiff requests
that such information be excluded from the record.
On June 15,
2012, Defendant filed a Response to the Notice of Objection.
[Dkt. 85.]
On June 18, 2012, Plaintiff filed a Notice of
Clarification in response to that Notice of Objection.
[Dkt.
86.]
1
On June 11, 2012, Defendant filed a Notice withdrawing an argument made in
this opposition. [Dkt. 83.]
7
Defendant’s Motion for Summary Judgment and
Plaintiff’s Motion for Attorneys’ Fees are now before the Court.
II.
A.
Standard of Review
Summary Judgment
Summary judgment is appropriate only if the record
shows that “there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co.,
80 F.3d 954, 958-59 (4th Cir. 1996) (citations omitted).
The
party seeking summary judgment has the initial burden of showing
the absence of a material fact.
U.S. 317, 325 (1986).
Celotex Corp. v. Catrett, 477
A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.”
Anderson, 477 U.S. at 248.
Once a motion for summary judgment is properly made
and supported, the opposing party must come forward and show
that a genuine dispute exists.
See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
The
party opposing summary judgment may not rest upon mere
allegations or denials.
Rather, the non-moving party “must set
forth specific facts showing that there is a genuine issue for
trial.”
Anderson, 477 U.S. at 250 (quotation omitted).
8
Unsupported speculation is not enough to withstand a
motion for summary judgment.
See Ash v. United Parcel Serv.,
Inc., 800 F.2d 409, 411-12 (4th Cir. 1986).
Summary judgment is
appropriate when, after discovery, a party has failed to make a
“showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
In reviewing the record on summary judgment, the court “must
draw any inferences in the light most favorable to the nonmovant” and “determine whether the record taken as a whole could
lead a reasonable trier of fact to find for the non-movant.”
Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th
Cir. 1991) (citations omitted).
B.
Attorneys’ Fees under FOIA
FOIA provides that courts “may assess against the
United States reasonable attorney fees and other litigation
costs reasonably incurred in any case . . . in which the
complainant has substantially prevailed.”
552(a)(4)(E).
5 U.S.C. §
FOIA now states that 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.”
Id.
9
“If a determination is made that [complainant] has
substantially prevailed, the court must then evaluate four
factors to decide whether he is entitled to an award.”
v. Evers, 187 F.3d 348, 362 (4th Cir. 1999).
Reinbold
“The four factors
the court would look to are: ‘(1) the benefit to the public, if
any, derived from the case; (2) the benefit to the plaintiff;
(3) the nature of the plaintiff's interest in the records
sought; and (4) whether the government’s withholding of the
records had a reasonable basis in the law.’”
Id. at n.16
(quoting Gowan v. U.S. Dep't of the Air Force, 148 F.3d 1182,
1195 (10th Cir. 1998)) (internal quotations omitted).
Attorneys’ fees award decisions are within the
discretion of the district court and are reviewed for abuse of
discretion.
See McDonnell v. Miller Oil Co., 134 F.3d 638, 640
(4th Cir. 1998).
III. Analysis
A.
Summary Judgment
FOIA cases are properly resolved on summary judgment
once documents responsive to the FOIA request at issue have been
identified.
See Hanson v. USAID, 372 F.3d 286, 290 (4th Cir.
2004); Wickwire v. Gavin, 356 F.3d 588, 590 (4th Cir. 1994).
To
obtain summary judgment in this FOIA case, USACIDC must show,
viewing the facts in the light most favorable to Plaintiff, that
there is no genuine dispute of material fact with regard to
10
USACIDC’s compliance with FOIA.
See Rein v. U.S. Patent and
Trademark Office, 553 F.3d 353, 358 (4th Cir. 2009).
Thus,
there are two basic inquiries in evaluating a FOIA request: the
adequacy of the search and the appropriateness of any
withholdings.
i.
The Court will address each in turn.
The Search
The adequacy of USACIDC’s search for responsive
documents is evaluated under a reasonableness standard.
Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
See
“In
judging the adequacy of an agency search for documents the
relevant question is not whether every single potentially
responsive document has been unearthed, but whether the agency
has demonstrated that it has conducted a search reasonably
calculated to uncover all relevant documents.”
Rein, 553 F.3d
362-63 (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1246-47 (4th
Cir. 1994)).
And, “[i]n demonstrating the adequacy of its
search, [an agency may rely on an] affidavit [that is]
reasonably detailed, setting forth the search terms and the type
of search performed, and averring that all files likely to
contain responsive materials (if such records exist) were
searched so as to give the requesting party an opportunity to
challenge the adequacy of the search.”
Id.
Here Defendant submits the affidavit of Michelle
Kardelis, the Chief of the Freedom of Information Act and
11
Privacy Act Division at USACIDC.
(“Decl. Kardelis A”.)
(Decl. Kardelis [Dkt. 71-1]
Ms. Kardelis provided detail on the
databases searched, including the Crime Records Center, Army
Criminal Investigation and Criminal Intelligence System, the
Centralized Operations Police Suite, the Defense Central Index
of Investigations, and the Automated System Crime Record Center.
(Decl. Kardelis A ¶¶ 12, 13, 20.)
Ms. Kardelis also provided
detail on the search terms used in the search, noting that the
search keywords were: Michael Hopmeier, Mr. Hopmeier’s social
security numbers, and Unconventional Concepts, Inc.
Kardelis A ¶ 20.)
(Decl.
And, Ms. Kardelis provided detail on the
sources of the documents released.
(Decl. Kardelis A ¶¶ 34-37.)
Plaintiff argues that Defendant only gave general
statements regarding its search procedure during a typical
response and “[n]ot once does Defendant set forth its search
terms or detail the type of search it performed for Plaintiff’s
specific FOIA request . . . .”
(Opp. Summ. J. [Dkt. 75] at 5.)
As evidenced above, Plaintiff is simply wrong.
Ms. Kardelis
detailed the searches for this particular FOIA request and
included specific search terms.
And Plaintiff’s argument that
Defendant does not provide a rationale for the search falls
flat.
The rationale is provided in the general statements in
Ms. Kardelis’ Declaration describing the Army’s FOIA program and
USACIDC’s FOIA procedures.
Finally, Plaintiff takes issue with
12
the fact that the affidavit provided for the April 2012 Release
does not describe the initial search.
But that is because the
2012 Release was the result of a second review of the documents
in the original search.
Defendant does not submit that it
conducted a second search.
It simply reviewed a sub-set of the
existing universe of documents a second time, namely documents
withheld under Exemptions 6 and 7(C).
The relevant question is “whether the agency has
‘demonstrated that it has conducted a search reasonably
calculated to uncover all relevant documents.’”
Ethyl Corp., 25
F.3d at 1246 (internal quotation and citation omitted).
has.
Here it
Defendant’s first search in 2007 of the four databases
revealed that there were two active investigations–-the 2005
investigation that originated in Maryland and the 2006
investigation that originated in Boston.
20.)
(Decl. Kardelis A ¶
Those were the records received for FOIA processing.
(Decl. Kardelis A ¶ 32.)
released to Plaintiff.
And those were the records that were
(Decl. Kardelis A ¶¶ 34-37.)
The two
subsequent searches of just one database in 2009 and 2010 simply
confirmed that there was an ongoing investigation and so
production was prohibited at that time.
25, 31.)
(Decl. Kardelis A ¶¶
The Court finds that that USACIDC’s search was
reasonable, as it was conducted in a manner designed to identify
all responsive documents.
13
ii.
The Withholdings
To withhold information responsive to a FOIA request,
an agency must show that the withheld material falls within at
least one of the FOIA’s statutory exemptions.
F.2d at 1351.
See Weisberg, 745
The “[e]xemptions must be narrowly construed and
the burden of demonstrating that these strictly defined
[e]xemptions apply to a particular case rests with the agency.”
John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989).
To
make such a showing, Defendant may submit affidavits,
declarations, or a Vaughn Index describing the withheld
documents and the statutory basis for the withholdings, in order
to provide sufficient information to permit this Court to
determine whether the withheld documents fall within the claimed
exemptions.
See Ethyl Corp., 705 F.2d at 1250.
USACIDC provides two declarations from Ms. Kardelis,
along with declarations from three other individuals, and two
Vaughn indices.
USACIDC asserted FOIA Exemptions 3, 4, 5, 6,
7(C), 7(D), 7(E), and 7(F).
The bulk of the redactions to the
entire release consisted of redactions of personal information
pursuant to FOIA Exemption 6 and 7(C).
Exemption 6 requires
agencies to withhold information contained in “personnel,”
“medical,” and “similar” files when disclosure “would constitute
a clearly unwarranted invasion of personal privacy.”
552(b)(6).
5 U.S.C. §
Similarly, Exemption 7(C), shields from release
14
“records or information compiled for law enforcement purposes .
. . that could reasonably be expected to constitute an
unwarranted invasion of personal privacy[.]”
5 U.S.C. §
552(b)(7)(c).
Plaintiff argues that Defendant failed to properly
invoke Exemptions 6 and 7(C).
(Opp. Summ. J. at 7-9.)
Plaintiff bases its argument on the fact that in 2012 Defendant
released additional company documents and documents specific to
Mr. Hopmeier after it reviewed documents withheld under
Exemptions 6 and 7(C) for the second time.
But this Court finds
that USACIDC’s determination to correct its earlier withholdings
was nothing more than a correction.
USACIDC provides
substantial detail on its search process, its initial Vaughn
Index is sufficiently specific and itemized, and USACIDC
provided an additional Vaughn Index for all of the documents in
its second review.
The Court cannot agree with Plaintiff that
Defendant’s initial withholding of documents from the 2011
production “calls into question whether Defendant has properly
invoked the other FOIA exemptions.”
(Opp. Summ. J. at 7.)
The
Court notes that Plaintiff is under the erroneous impression
that Defendant’s second review only encompassed documents “in
relation to a corporation’s privacy interests or documents
originating from [the Small Business Administration] and [the
Office of the Secretary of Defense] that merited further
15
review.”
(Opp. Summ. J. at 9.)
Ms. Kardelis’ Declaration that
accompanied the 2012 release explicitly states that all
responsive documents were reviewed.
(Decl. Kardelis B ¶ 7.)
The production here has been substantial.
Defendant
produced over 41,000 pages of responsive documents and consulted
with approximately thirty federal agencies or organizations in
order to do so.
(Mem. Summ. J. [Dkt. 71] at 7).
Having
reviewed both Vaughn indices and the various affidavits, this
Court is satisfied that USACIDC has properly applied the FOIA
exemptions and finds that in camera inspection is not necessary
in this case.
B.
Attorneys’ Fees
Turning next to Plaintiff’s Motion for Attorneys’
Fees, as a preliminary matter, this Court finds that “[Federal
Rule of Civil Procedure 408] does not bar a court’s
consideration of settlement negotiations in its analysis of what
constitutes a reasonable fee award in a particular case.”
Lohman v. Duryea Borough, 574 F.3d 163, 167 (3d Cir. 2009)
(permitting disclosure of settlement negotiations as an
indicator of the measure of plaintiff’s success); see also
Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011).
Particularly in light of Plaintiff’s claims about the extent of
Defendant’s cooperation in its motion--claims which necessarily
rely on settlement discussions--the Court finds that Plaintiff
16
offers no reason why it should take notice of its Objection
[Dkt. 84] and exclude particular statements from the record.
i.
Eligibility for Award
Under FOIA, to demonstrate eligibility for an
attorneys’ fees award a plaintiff can show it has obtained
relief though a judicial order.
See 5 U.S.C. § 552(a)(4)(E).
And, after the OPEN Government Act of 2007, a plaintiff can
“become eligible for attorney fees, without winning courtordered relief on the merits of their FOIA claims.”
See Brayton
v. Office of the U.S. Trade Rep., 641 F.3d 521, 525 (D.C. Cir.
2011) (discussing the history of the Act); Judicial Watch, Inc.
v. FBI, 522 F.3d 364, 367 (D.C. Cir. 2008).
The second way in
which a plaintiff can prove that it has substantially prevailed,
is to show it obtained relief though “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).
Some courts have found that the “catalyst theory,” in
which the lawsuit is the catalyst to the agency’s action, is
relevant to the second statutory basis for prevailing.
See
Davis v. United States DOJ, 610 F.3d 750, 752 (D.C. Cir. 2010)
(finding Congress enacted the OPEN Government Act of 2007 to
establish that the catalyst theory applied in FOIA cases.)
Under such a theory, a plaintiff must establish that its claim
“was reasonably necessary and substantially caused the requested
17
records to be released.”
Reinbold, 187 F.3d at 363 (denying
attorneys’ fees when the delay in response was caused by a
staffing shortage).
In describing the theory, the Fourth
Circuit has explained, that “[i]n other words,” it “is a
question of causation--the lawsuit must have resulted in the
release of records that would not otherwise have been released.”
Id.
“The mere filing of the complaint and subsequent release of
the documents is insufficient to establish causation.”
ACLU v.
DHS, 810 F. Supp. 2d 267, 274 (D.D.C. 2011) (quoting Weisberg,
745 F.2d at 1496).
“Courts must consider other factors, such as
whether the agency made a good[-]faith effort to search out
material and pass on whether it should be disclosed, whether the
scope of request caused delay in disclosure, and whether the
agency was burdened by other duties that delayed its response.”
Id. (quoting Frye v. EPA, No. 90-3041, 1992 U.S. Dist. LEXIS
14332, 1992 WL 237370, at *2 (D.D.C. Aug. 31, 1992).
Here, Plaintiff obtained relief through this Court’s
November 22, 2011, Memorandum Opinion and Order directing
Defendant to file a representative sampling.
[Dkts. 67, 68.]
Plaintiff obtained both a representative sampling and,
subsequently, an additional 906 pages of documents in 2012.
Defendant would not provide the Vaughn Index without a Court
order, and the additional disclosure of documents resulted from
the preparation and then review of the Index.
18
The instant
action was a direct cause of the 2012 document disclosure.
See
ACLU, 810 F. Supp. 2d at 276 (finding plaintiff eligible for
attorneys’ fees because without litigation particular “documents
would not have been identified or evaluated to determine whether
they should be released under the new guidelines”);
Hernandez
v. United States Customs & Border Prot. Agency, No. 10-4602,
2012 U.S. Dist. LEXIS 14290, at *16-19 (E.D. La. Feb. 6, 2012)
(finding plaintiff eligible where disclosure was made on the
Court granting the motion for partial summary judgment over
defendant’s objections).
Because Plaintiff obtained relief
through a court order, it meets the first statutory basis for
substantially prevailing.
It is also likely that Plaintiff meets the second
statutory option for establishing eligibility.
The parties
primarily argue about the catalyst theory and causation.
Yet,
they fail to address the statutory text of the second basis for
prevailing and the fact that it is silent on the issue of
causation.
The text simply states that a complainant has
substantially prevailed if the complainant has obtained relief
through a voluntary or unilateral change in position by the
agency, as long as the complainant’s claim is not insubstantial.
Defendant initially withheld documents in full,
pursuant to Exemption 7(A), because of an ongoing investigation
that was not formerly closed until after Plaintiff filed its
19
Complaint.
Defendant could have litigated the propriety of its
withholdings pursuant to Exemption 7(A), and required Plaintiff
to renew its FOIA request after the investigation closed.
Instead, after the investigation was closed, Defendant moved to
stay proceedings in order to produce responsive documents.
It
was not, as Plaintiff asserts, the “complaint that caused
Defendant to produce documents in a reversal of its position at
the administrative level to deny Plaintiff’s FOIA request.”
(Pl.’s Mem. [Dkt. 77] at 4.)
Rather it was the closure of the
administrative investigation that caused the production of
documents in 2011.
Thus, the Court finds that Defendant never
changed its position on the appropriateness of withholding
documents pursuant to the ongoing administrative investigation.
Defendant consistently demonstrated that it believed the
documents should be withheld because of the investigation.
Instead, what changed was the underlying fact that the
investigation ended.
Defendant, however, did make a “voluntary” and likely
“unilateral,” change in its position about withholding and
redacting company documents, documents that pertained to Mr.
Hopmeier, and a handful of other documents.
In changing its
position about the scope of Exemption 7(C) and the
appropriateness of withholding other documents, it produced
documents in 2012.
Here, Plaintiff’s claim is not
20
insubstantial, and, as a result, under the plain meaning of the
text of the statute, Plaintiff also substantially prevailed
because it obtained relief through a voluntary or unilateral
change in position by the agency.
Thus, the Court finds that
there is an additional alternative basis for finding Plaintiff
eligible for attorneys’ fees.
ii.
Entitlement to Award
“[A]n award of attorney’s fees is not automatic, but
is to be made where doing so will encourage fulfillment of the
purposes of FOIA.”
(4th Cir. 1978).
Nix v. United States, 572 F.2d 998, 1007
In evaluating entitlement, the Court will
begin with the four non-exclusive factors of the public benefit,
benefit to plaintiff, the nature of the plaintiff’s interest,
and whether the government’s withholding of the records had a
reasonable basis in the law.
The factors reflect the following:
[T]here will seldom be an award of
attorneys’ fees when the suit is to advance
the private commercial interests of the
complainant. In these cases there is usually
no need to award attorneys’ fees to insure
that the action will be brought. The private
self-interest motive of, and often pecuniary
benefit to, the complainant will be
sufficient to insure the vindication of the
rights given in the FOIA. The Court should
not ordinarily award fees under this
situation unless the government officials
have been recalcitrant in their opposition
to a valid claim or have been otherwise
engaged in obdurate behavior.
21
Sabalos v. Regan, 520 F. Supp. 1069, 1072 (E.D. Va. 1981)
(quoting S. Rep. No.93-854, 93d Cong., 2d Sess. 19 (1974)).
The Court begins by noting that it finds no basis for
Plaintiff’s allegations that Defendant has engaged in obdurate
behavior in this case.
the contrary.
Rather Defendant’s behavior has been to
When Plaintiff filed suit there was an ongoing
investigation that provided a legitimate basis for withholding
documents pursuant to Exemption 7(A).
And, when the
investigation was complete, Defendant voluntarily produced over
41,000 pages of documents.
Turning to the public benefit, “[a]ttorney’s fees are
appropriate where a FOIA response helps protect the public’s
interest in the ‘fair and just’ administration of justice.”
Jarno v. DHS, 365 F. Supp. 2d 733, 739 (E.D. Va. 2005).
Yet,
“[it] is doubtless true . . . that the successful FOIA plaintiff
always acts in some degree for the benefit of the public.”
Sabalos, 520 F. Supp. at 1072 (quoting Bureau of Prisons, 570
F.2d 529, 533 (5th Cir. 1978).
Where the public interest is
secondary to a private interest the Court must evaluate whether
the public interest is sufficient to trigger the award of
attorney fees.
See id. at 1072.
“The degree of dissemination
to the press and public are recognized as important factors in
determining whether a public benefit exists.”
Supp. 2d at 738.
22
Jarno, 365 F.
Here, Plaintiff’s FOIA request was for copies of all
records pertaining to UCI or Mr. Hopmeier.2
UCI is a
professional engineering and technical consulting firm
specializing in issues related to counter terrorism,
preparedness response operations, and national security.
Hopmeier is the president of UCI.
Mr.
Plaintiff submits that it had
for years been a victim of Defendant’s “fruitless and invasive
investigations,” and that it sought disclosure of documents to
“shed public light on Defendant’s improper investigation
methods.”
(Mem. in Supp. Mot. for Attorneys’ Fees (MAF) [Dkt.
77] at 6.)
Defendant argues that Plaintiff fails to identify
any document produced pursuant to the FOIA request that sheds
light on allegedly improper investigation methods.
[Dkt. 81] at 24.)
(Opp. MAF
Plaintiff points only to an affidavit
produced supporting a search warrant that it argues would be
beneficial to the public’s general understanding of its Fourth
Amendment rights.
(Pl.’s Resp. [Dkt. 82] at 10.)
Plaintiff
critically fails, however, to identify any specific improper
investigation methods.
General allegations of impropriety after
production are alone insufficient.
Although at the hearing
Plaintiff asserted that Mr. Hopmeier is releasing information to
those who review the investigations, there is no other evidence
2
The parties agree that although Williams Mullen is nominally the Plaintiff
in this case because it originally filed the FOIA request on behalf of
Michael Hopmeier and UCI, the latter are the real parties in interest and the
proper focal point of the attorneys’ fee inquiry.
23
Plaintiff plans to disseminate any information to the public.
And, it is not obvious that the public has any general interest
about the two investigations into UCI or Mr. Hopmeier.
“Minimal, incidental and speculative public benefit will not
suffice.”
Aviation Data Service v. Federal Aviation Admin., 687
F.2d 1319, 1323 (10th Cir. 1982).
Turning next to the commercial benefit to Plaintiff
and Plaintiff’s interest, “[i]n weighing the commercial benefit
factor, the Court should consider whether the party requesting
fees was indigent or a non-profit public group and not a large
corporate interest.”
Jarno, 365 F. Supp. 2d at 739. Defendant
persuasively argues that Plaintiff’s interest is plainly of a
commercial nature, and points out that Plaintiff has done
business with agencies involved in the investigations.
Opp. [Dkt. 81] at 22-23.)
(Def.’s
The two investigations related to
expenditures of government funds advanced to UCI for the
performance of work and the documents include things such as
audits and purchase agreements.
(Id. at 21.)
Plaintiff
counters that it did not use FOIA to obtain data related to a
competitor or as a substitute for discovery in private
litigation with the government, yet neither of these things are
dispositive.
Here, there is sufficient evidence to say that
Plaintiff has a commercial interest in documents related to
investigations about its use of government funds.
24
And,
Plaintiff’s argument that in being a “small, private business,”
it is “more akin to a nonprofit public interest group than a
large corporate entity” is unavailing in this context.
Pl.’s Mot. at 6.)
(See
Plaintiff fails to explain why UCI is like a
public interest group, and although UCI might not be a “large”
business, the nature of the interest nonetheless appears to be
predominantly commercial.
Finally, Defendant asserted a reasonable basis for
initially withholding the documents: the existence of an ongoing
investigation.
And, Defendant demonstrated responsiveness to
the FOIA request once the investigation was concluded.
In
reviewing the relevant factors related to entitlement, and in
considering FOIA’s purpose, the Court finds that Plaintiff is
not entitled to attorneys’ fees in this case.
IV.
Conclusion
This Court will therefore grant Defendant United
States Army Criminal Investigation Command’s Motion for Summary
Judgment and deny Plaintiff’s Motion for Attorneys’ Fees.
July 6, 2012
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
25
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