Justice v. Mine Safety and Health Administration

Filing 51

MEMORANDUM OPINION & ORDER denying Plaintiff's 45 PETITION for Attorney Fees. Signed by Judge John T. Copenhaver, Jr. on 3/31/2017. (cc: attys; any unrepresented party) (tmr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARSHALL JUSTICE,
Plaintiff,
v.

Civil Action No. 2:14-14438

MINE SAFETY AND HEALTH
ADMINISTRATION,
Defendant.

MEMORANDUM OPINION & ORDER
Pending is plaintiff’s petition for attorney’s fees
and costs, filed August 17, 2016 (ECF No. 45).

I.

Facts and Procedural History

The facts of this case are set forth fully in the
court’s previous memorandum opinion and order.

See Mem. Op. &

Order, No. 2:14-cv-14438, 2015 WL 4621543 (S.D. W. Va. July 31,
2015) (ECF No. 39).

Only a brief recapitulation is provided

here.
Plaintiff, Marshall Justice, submitted a Freedom of
Information Act (“FOIA”) request to the Mine Safety and Health
Administration (“MSHA”) on December 5, 2013.

Justice sought all

non-privileged material related to MSHA’s investigation of an

earlier administrative complaint (dismissed by plaintiff on
November 26, 2014) in which he alleged that MSHA discriminated
against him for engaging in protected safety-related activities.
Compl. ¶ 11.

MSHA notified plaintiff by letter dated January

24, 2014 that it would require ninety working days (presumably
calculated to expire on June 3, 2014) to process and complete
plaintiff’s FOIA request because it needed to search for and
collect records from separate offices and determine which
records if any were exempt under FOIA.
Plaintiff’s two-count complaint in this case was filed
on April 10, 2014.

Count I alleges that defendant violated FOIA

by failing to release plaintiff’s requested records.
19-20 (ECF No. 1).

Compl. ¶¶

Count II asks the court for declaratory

relief to the same effect.

See Compl. p. 6 (WHEREFORE clause).

On May 2, 2014, MSHA opened its 112-page file to
plaintiff, of which it released 45 pages without redaction,
released 26 pages with partial redactions, and withheld 41
pages.

On September 22, 2014, MSHA reinstated policies that had

been in effect prior to 2002 that state, inter alia, that:
[i]nformation [that is to be] released to complainants
and their representatives in closed Section 105(c)
discrimination cases filed under the Freedom of
Information Act . . . [includes]:
. . . .
2







Complainant’s personnel records, usually provided
by company, if available in record
All management statements involved in decisionmaking process (appropriate redactions applied)
Position statements prepared by Company attorney
All records provided by company to support its
position (appropriate redactions applied)
Heavily redacted witness statements taken with
management/company attorney present (appropriate
names and identifying information redacted)
. . . .

See Pl.’s Mem. in Opp. to Def.’s Mot. to Stay Disc. and Amend
Scheduling Order, Ex. at 2 (ECF. No. 24-1).

Defendant’s in-

house counsel, April Nelson, emailed plaintiff’s counsel, Sam
Petsonk, a copy of the policy renewal notice the same date that
it was issued.

In accordance with its reinstated policy, MSHA

released more pages on December 16, 2014, such that with respect
to plaintiff’s 112-page file, it has released in total 51 pages
without redactions, released 31 with some redactions, and
withheld 30 completely.

Assistant U.S. Attorney Gary Call

explained the policy change and its application to plaintiff in
a letter to plaintiff’s counsel as follows:
[I]n reviewing a number of case files to evaluate more
specifically the probable privacy impact of the
release of statements, MSHA believed that more
management officials, especially those speaking in
front of company attorneys or other company
representatives, likely would experience no personal
privacy impact in the release of their statements.
Subsequently, MSHA reprocessed under FOIA any case
file upon request, and has issued a number of
supplemental responses to different FOIA requesters,
including you.
3

Def.’s Mot. for Summ. J. Ex. 13 at 2 (ECF No. 30-1).
On July 31, 2015, this court ordered MSHA to
reconsider its decision to withhold four of the pages in
plaintiff’s file and to meet with Justice to attempt an amicable
resolution of the dispute over those pages.

See July 31, 2015

Mem. Op. and Order (ECF No. 39) (hereinafter “July 31, 2015
Order”).

If an amicable resolution proved impossible, the court

ordered MSHA to submit the disputed pages for in camera review.
Those four pages - MSHA000090 through MSHA000093 - are described
in MSHA’s Vaughn index as “Memoranda of Interview of MSHA
inspectors by MSHA Section 105(c) complaint investigator,
conducted in December of 2013,” henceforth referred to as the
two “inspector MOIs.”
40).

See Notice of Disclosure 7-10 (ECF No.

Each memorandum consists of two pages.

As indicated by

the Vaughn index, the first is composed of MSHA000090 and 91,
and the second of MSHA000092 and 93.
On August 18, 2015, MSHA released partially redacted
versions of the inspector MOIs to plaintiff.

Plaintiff objected

to partial redaction of the MOIs, and the court later passed on
the MOIs via in camera review, ruling that partial disclosure of
the MOIS was sufficient to fulfill the expectations set by FOIA.
See, March 29, 2016 Mem. Op. and Order (ECF No. 42).

In its

Judgment Order of August 17, 2016, the court rendered judgment
4

for defendant on Count II and for plaintiff on Count I with
respect to all those documents disclosed by that point by
defendant, but not with respect to redacted portions of the
inspector MOIs.

J. Order 1-2 (ECF No. 43).

In his petition for costs and fees, plaintiff argues
that he has “substantially prevailed” and is entitled to
attorney’s fees and costs under FOIA, 5 U.S.C. § 552(a)(4)(E).
In particular, plaintiff argues that he obtained relief in this
case through the release of a substantial amount of documents
and through “a voluntary or unilateral change in position by the
agency.”

See Pl.’s Pet. for Att’y’s Fees and Costs 4 (ECF No.

46) (hereinafter “Pet.”); 5 U.S.C. § 552(a)(4)(E).

The petition

states that
Defendant substantially revised its disclosure policy
in accordance with the Plaintiff’s demand for
declaratory judgment, after the Plaintiff continued to
prosecute this case beyond initial dispositive
motions. Defendant’s decision to share minimallyredacted investigative files with mine safety
discrimination complainants is a major improvement in
the transparency and efficacy of anti-discrimination
policy and procedure in the mining industry that will
have nationwide impacts for all of America’s coal,
metal, and nonmetal miners – quite a substantial
impact.
Pet. 4.

Plaintiff also contends that his counsel’s rates were

reasonable and justified by the market for legal services.
Pl.’s Reply in Supp. of Pet. for Att’y’s Fees 7-9 (ECF No. 50)
(hereinafter “Reply”).
5

Defendant MSHA responds that plaintiff did not
substantially prevail on either Count.

MSHA argues that none of

its disclosures was “the product of a judicial order, an
enforceable written agreement,” or a voluntary policy change by
the agency under 5 U.S.C. § 552(a)(4)(E).
10 (ECF No. 49) (hereinafter “Resp.”).

Def.’s Resp. to Pet.

It contends that

plaintiff must show that “there is a causal link between the
action and the release of the documents,” and that none of its
successive documentary releases met this standard.

Id. 11.

Defendant further contends that even if plaintiff were eligible
for fees because he had substantially prevailed, plaintiff is
not entitled to his fees because his litigation has not provided
sufficient public benefit.

Finally, defendant argues that the

time charges submitted by plaintiff’s counsel are too vague and
inadequate to permit reasonable analysis.
II.

Analysis

Whether an award of attorney’s fees is proper under
FOIA depends on a two-step inquiry: the complainant must first
demonstrate “eligiblity” for fees, and second, “entitlement” to
fees.

Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1495

(D.C. Cir. 1984).

The court will first analyze eligibility for

fees with respect to each of the three disclosures at issue
here, and will then analyze plaintiff’s entitlement to any fees
6

for which he is eligible.
The standard governing eligibility is stated in 5
U.S.C. § 552(a)(4)(E) as follows:
(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 [“prong (I)”]; or
(II) a voluntary or unilateral change in position
by the agency, if the complainant's claim is not
insubstantial [“prong (II)”].
5 U.S.C. § 552(a)(4)(E).

If the court determines that a

litigant has substantially prevailed, it then assesses whether
the litigant is entitled to fees by looking to the four factors
elaborated in section (B) below.

Notably, “the burden is on

plaintiff to show that ‘the lawsuit was reasonably necessary and
the litigation substantially caused the requested records to be
released.’”

Am. Bird Conservancy v. U.S. Fish & Wildlife Serv.,

110 F. Supp. 3d 655, 665 (E.D. Va. 2015) (quoting Burka v. U.S.
Dep’t of Health and Human Servs., 142 F.3d 1286, 1288 (D.C. Cir.
1998)).

7

A.

Eligibility for Fees

The Supreme Court’s ruling in Buckhannon Board & Care
Home, Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598 (2001), dictated from 2001 to 2007 that
“plaintiffs generally would only be eligible for attorney fees
if they were ‘awarded some relief by [a] court,’” as reflected
in prong (I) of the definition of “substantially prevailed” in 5
U.S.C. § 552(a)(4)(E).

See Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 525 (D.C. Cir. 2011) (alteration
in original) (quoting Buckhannon, 532 U.S. at 603).
The strict Buckhannon rule drew some criticism for
allowing the government to stonewall valid FOIA claims
but prevent an award of attorney fees by disclosing
the documents at the last moment before judgment. An
agency could simply refuse a FOIA request, wait for a
lawsuit to be filed, drag its heels through the
litigation process, and then release the requested
documents at the last moment if the plaintiff appeared
likely to win a judgment. Agencies could force FOIA
plaintiffs to incur litigation costs while
simultaneously ensuring that they could never obtain
the merits judgment they needed to become eligible for
attorney fees. To address this problem, Congress
passed the OPEN Government Act of 2007, Pub.L. No.
110–175, which abrogated the rule of Buckhannon in the
FOIA context and revived the possibility of FOIA fee
awards in the absence of a court decree. The Act
redefined “substantially prevail[ing]” to include
“obtain[ing] relief through . . . 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).
The purpose and effect of this law, which remains in
effect today, was to change the “eligibility” prong
back to its pre-Buckhannon form.
8

Brayton, 641 F.3d at 525 (alterations in original).

Prior to

Buckhannon, the so-called “catalyst theory” governed fee
eligibility, and dictated that “a plaintiff ‘substantially
prevailed’ not only when he obtained an official disclosure
order from a court, but also when he substantially caused the
government to release the requested documents before final
judgment.”

Id. at 524–25.

See also Lapp v. Fed. Bureau of

Investigation, No. 1:14-CV-160, 2016 WL 737933, at *9 (N.D.W.
Va. Feb. 23, 2016) (noting that “Congress’s subsequent 2007
amendments to the FOIA establish[ed] that the catalyst theory
applied in FOIA cases” (alteration in original) (quotation marks
omitted)).

“In other words, to determine whether [a plaintiff]

substantially prevailed, in the absence of a final judgment in
his favor, is a question of causation — the lawsuit must have
resulted in the release of records that would not otherwise have
been released.”

Reinbold v. Evers, 187 F.3d 348, 363 (4th Cir.

1999) (emphasis added) (observing that plaintiff brought forth
“no evidence” that records would not have been released but for
his claim).
MSHA made disclosures to plaintiff on three separate
occasions: one on May 2, 2014, one on December 16, 2014, and one

9

on August 18, 2015.1

The court will analyze each independently

for purposes of determining which portion of counsel’s fees, if
any, may be awarded.

Cf. Am. Bird Conservancy, 110 F. Supp. 3d

at 663 (breaking down eligibility for fees based on successive
disclosures and analyzing each independently).

1

MSHA in its response points out that “the timing of disclosures
indicates correlation rather than causation,” which it presumes
is insufficient to show eligibility on the basis of Weisberg.
Resp. 12. Weisberg, however, which the Fourth Circuit cited
favorably in Reinbold, makes no such distinction. In Weisberg,
the District Court had determined the complainant was entitled
to attorney’s fees simply because the Department of Justice had
disclosed over 50,000 pages of documents after the commencement
of the action. 745 F.2d at 1496. Additionally, “the District
Court paid no heed to the Department’s overwhelming backlog of
FOIA requests, which this court had occasion to consider in
[Open America v. Watergate Special Prosecution Force, 547 F.2d
605 (D.C. Cir. 1976)]. In this case, it is clear beyond
peradventure that appellant’s request involved huge numbers of
documents, as well as laborious and time-consuming reviews.”
Id.
The case at bar, however, is not analogous to
Weisberg. First, plaintiff’s complaint involves nowhere near
the 50,000-plus-page request at issue in Weisberg. MSHA’s file
on plaintiff totaled 112 pages. Second, while correlation may
not strictly imply causation, disclosures of documents arising
after instigation of FOIA litigation certainly can provide some
indication that litigation catalyzed disclosure, depending on
the status of litigation at a particular time of disclosure.
See, e.g., Am. Bird Conservancy, 110 F. Supp. 3d at 667 (E.D.
Va. 2015) (finding that disclosure of documents by Department of
Interior after dispositive motions were filed or when the court
was reviewing documents in camera strongly suggests causation).
Here, defendant failed to disclose the full cache of documents
(except the MOIs) until December 16, 2014. Additionally, MSHA
only finally disclosed the inspector MOIs after the court’s
intervention. July 31, 2015 Order 34.
10

1.

First Disclosure

Plaintiff nowhere specifically contends that he is
eligible for fees with respect to the May 2, 2014 disclosure,
although he might be taken to suggest as much when he states
that he is entitled to fees because defendant has produced “more
and more documents during the pendency of this suit.”

Pet. 4.

However, this argument does not justify eligibility for the
first disclosure because “the mere filing of the complaint and
the subsequent release of the documents is insufficient to
establish causation.”

Weisberg, 745 F.2d at 1496; Simon v.

United States, 587 F. Supp. 1029, 1031 (D.D.C. 1984) (“[T]he
mere sequence of events — i.e., that production followed the
initiation of a suit — does not establish plaintiffs’
eligibility for fees.”).
Of course, FOIA requires an agency to “determine
within 20 days . . . after the receipt of [a FOIA] request
whether to comply with such request.”
552a)(6)(A)(i).

5 U.S.C. §

However, as the court stated in its previous

Memorandum Opinion and Order, “[n]othing in that language
requires an agency to disclose all of the requested documents
within 20 days, as Justice would have it.”
Op. and Order 14 (ECF No. 39).

July 31, 2015 Mem.

See also Citizens for

Responsibility & Ethics in Wash. v. Fed. Election Comm’n, 711
11

F.3d 180, 188 (D.C. Cir. 2013) (a “determination [to comply]
does not require actual production” of requested documents
within 20 days (emphasis in original)).

FOIA only requires that

once MSHA has made a determination and collected its records, it
will make those records promptly available to the requester.
See 5 U.S.C. § 552(a)(6)(C)(i); Citizens for Responsibility, 711
F.3d at 188.

MSHA notified Justice that it would require ninety

working days from January 24, 2014, to complete his request
because, among other things, it needed to search for and collect
records from separate offices and determine which records if any
were exempt under FOIA.

See July 31, 2015 Mem. Op. and Order 3.

MSHA then made its initial disclosure on May 2, 2014, well in
advance of its self-imposed deadline, completing the request
within what was presumably 69 working days.

Pet. 1.

Justice

has simply provided no reasons, arguments, or evidence for
thinking that this disclosure resulted from anything other than
the completion of a records search and the reasonably prompt
disclosure thereof.

Consequently, he is not eligible to recover

fees related to the first disclosure.
2.

Second Disclosure

The second disclosure occurred on December 16, 2014,
after MSHA reinstated its pre-2002 disclosure policy applying to
miners like Justice.

MSHA released eleven additional pages, six
12

unredacted and five redacted.

Resp. 3.

Plaintiff argues that

his complaint precipitated MSHA’s change in disclosure policy on
September 22, 2014 and subsequently the “supplement disclosures
that the Defendant made to the Plaintiff pursuant to that new
policy in December 2014.”

Reply 2-3.

Plaintiff relies on several contentions in making this
claim.

First, plaintiff correctly notes that MSHA’s in-house

counsel e-mailed a copy of the policy change to plaintiff’s
counsel on the date that MSHA reinstated it.

Reply Ex. 1.

Second, plaintiff notes that the reinstated policy “addressed
FOIA practices that were at issue in this lawsuit.”

Reply 5.

Third, plaintiff observes that MSHA’s December disclosure “fell
within the scope of the expanded policy.

Therefore, it is

apparent that the agency targeted this new policy toward
attempting to resolve the specific FOIA claims that the
plaintiff was pursuing.”

Reply 5.

Assistant U.S. Attorney Gary Call explained the policy
change in a letter to plaintiff’s counsel as follows:
[I]n reviewing a number of case files to evaluate more
specifically the probable privacy impact of the
release of statements, MSHA believed that more
management officials, especially those speaking in
front of company attorneys or other company
representatives, likely would experience no personal
privacy impact in the release of their statements.
Subsequently, MSHA reprocessed under FOIA any case
file upon request, and has issued a number of
13

supplemental responses to different FOIA requesters,
including you.
Def.’s Mot. for Summ. J. Ex. 13 at 2.

This policy related

specifically to Justice’s claims, which does suggest that his
claims were at least part of the reason for MSHA’s policy change
here.

See Brayton, 641 F.3d at 524-25.

Indeed, MSHA’s only

response to plaintiff’s claim that he catalyzed the policy
change consists of a single sentence, stating that “Plaintiff is
unable to produce a single letter, email or similar document
indicating that this release was somehow triggered by this
action.”

Resp. 12.

As just noted, however, plaintiff has shown

that MSHA emailed the policy change directly to plaintiff’s
counsel as soon as it was enacted.

Reply Ex. 1.

While it is a

close question, in conjunction with Mr. Call’s statement, it can
be inferred that Justice’s claims helped in part to catalyze the
policy change.

Consequently, the court finds that Justice is

eligible for fees with respect to the December 16, 2014
disclosure.

3.

Third Disclosure

Litigation over the two inspector MOIs in plaintiff’s
file continued after the second disclosure.

The MOIs remained

in dispute until, and even after, the court’s July 31, 2015
Order directing MSHA to reconsider disclosure.
14

In its third and

final disclosure, MSHA released the two MOIs on August 18, 2015.
MSHA’s successive disclosures raise the specter with which the
pre-Buckhannon “catalyst theory” is concerned.

Brayton, 641

F.3d at 525 (“An agency could simply refuse a FOIA request, wait
for a lawsuit to be filed, drag its heels through the litigation
process, and then release the requested documents at the last
moment if the plaintiff appeared likely to win a judgment.”).
As noted in Brayton, prong (II) of the “substantially prevailed”
analysis under 5 U.S.C. § 552(a)(4)(E) was specifically enacted
by the OPEN Government Act of 2007 to reinstate the attorney’s
fees jurisprudence predating Buckhannon.

Id.

The 2007 Act

ensconces “a voluntary or unilateral change in position by the
agency, if the complainant's claim is not insubstantial”
squarely within the definition of “substantially prevailed.”

5

U.S.C. § 552(a)(4)(E)(ii)(II).

Plaintiff appears to argue that this prong of the
definition aims at agency-wide policy changes, salient here to
the extent that MSHA issued such a change in September 2014.
See Reply 5.

In fact, however, prong (II) can be read in

simpler fashion: namely, if the agency changes its “position” in
the course of litigation with respect to the particular
complainant and the claim is not insubstantial, then the
complainant has substantially prevailed.
15

On this simpler

reading, MSHA patently and “voluntarily” changed its position on
the two MOIs at issue in the July 31, 2015 Order.

The court

directed MSHA to consider partial disclosure, MSHA did so, and
MSHA subsequently volunteered disclosure.

Resp. 4.

Furthermore, the MOIs clearly bore some relevance to plaintiff’s
case, making them not insubstantial.

On this reading of prong

(II), then, plaintiff has substantially prevailed under the preBuckhannon catalyst theory by arguing for disclosure, ultimately
causing MSHA to issue the MOIs.

Under the catalyst theory,

plaintiff thereby caused the agency to change its position and
issue the third disclosure, making plaintiff eligible for
attorney’s fees with respect to that disclosure.2

Even assuming arguendo that plaintiff is not eligible
for fees under prong (II), plaintiff is eligible for fees under
prong (I).

Prong (I) provides that a complainant substantially

prevails “if the complainant has obtained relief through . . .

2

Defendant argues that finding such an outcome “in effect
punish[es] MSHA for acting on the Court’s suggestion that it try
to find common ground with the Plaintiff.” This argument,
however, is an inversion of reality. Defendant is not the
victim here: allowing plaintiff to retrieve attorney’s fees is
not a punishment but a right established by statute. Defendant
could very well have avoided the possibility of an imposition of
fees by disclosing the redacted MOIs in the first place; it is
precisely the awarding of attorney’s fees under 5 U.S.C. §
552(a)(4)(E) that aims to deter government agencies from
“drag[ging] [their] heels through the litigation process.”
Brayton, 641 F.3d at 525.
16

(I) a judicial order, or an enforceable written agreement or
consent decree.”

5 U.S.C. § 552(a)(4)(E).

First, plaintiff

obtained relief through the July 31, 2015 Order.

It is safe to

assume that, under the catalyst theory, but for plaintiff’s
litigation and the court’s Order, MSHA would not have made the
third disclosure.

Furthermore, the court’s Judgment Order of

August 17, 2016 entered judgment “in favor of plaintiff Marshall
Justice, and against the defendant Mine Safety and Health
Administration (‘MSHA’) . . . with respect to Count I of the
complaint insofar as [he] seeks disclosure of certain documents
voluntarily released by MSHA on May 2, 2014, December 16, 2014,
and August 18, 2015.”

J. Order 1.

As a consequence, under both

prong (I) and prong (II) of 5 U.S.C. § 552(a)(4)(E)(ii)
plaintiff is eligible for attorney’s fees with respect to work
related to the disclosure of the two inspector MOIs.
B.

Entitlement to Fees

Eligibility, however, is only the first step in
awarding fees.

The court must also determine that a complainant

is entitled to fees.

See Reinbold, 187 F.3d at 363.

The four

factors relevant to that analysis 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
17

the records had a reasonable basis in the law.’”.

Id. at 362

n.16 (quoting Gowan v. U.S. Dep't of Air Force, 148 F.3d 1182,
1195 (10th Cir. 1998)).

See also Aviation Data Serv. v. Fed.

Aviation Admin., 687 F.2d 1319, 1323 (10th Cir. 1982) (noting
that “attorney fees may be awarded only on a positive and clear
showing of substantial public benefit”); Church of Scientology
of Cal. v. U.S. Postal Serv., 700 F.2d 486, 493 (9th Cir. 1983)
(emphasizing public benefit in its analysis); Blue v. Bureau of
Prisons, 570 F.2d 529, 534 (5th Cir. 1978) (public benefit
criterion may weigh more heavily than other criteria).

Public

benefit is emphasized in American Bird Conservancy:
But importantly, the benefit to the public must be
specific and concrete because ‘[i]t is doubtless true
. . . that the successful FOIA plaintiff always acts
in some degree for the benefit of the public.’
[Sabalos v. Regan, 520 F. Supp. 1069, 1072 (E.D. Va.
1981)](internal quotation marks and citations
omitted). In evaluating this factor ‘[t]he degree of
dissemination to the press and public are recognized
as important factors in determining whether a public
benefit exists.’ [Jarno v. Dep't of Homeland Sec., 365
F. Supp. 2d 733, 738 (E.D. Va. 2005).] Thus, analysis
under this factor ‘requires consideration of both the
effect of the litigation for which fees are requested
and the potential public value of the information
sought . . . .’ Davy v. C.I.A., 550 F.3d 1155, 1159
(D.C. Cir. 2008).
110 F. Supp. 3d at 668 (alterations other than full citations in
original).

See also Aviation Data Serv., 687 F.2d at 1323

(“Minimal, incidental and speculative public benefit will not
suffice.”); Jarno, 365 F. Supp. 2d at 739 (finding entitlement
18

to fees where plaintiff could point to articles in the press
“specifically regarding the documents released as a result of
th[e] Court's Order”); Menasha Corp. v. U.S. Dep’t of Justice,
No. 11-C-682, 2012 WL 1034933, at *5 (E.D. Wis. Mar. 26, 2012)
(finding no entitlement to fees where likelihood that particular
documents would be disseminated beyond the divulging litigation
was “speculative”).
The primary importance of the public benefit factor is
evidenced by the fact that a court does not award fees where a
FOIA requester uses the request “as a substitute for discovery
in private litigation with the government.”

Young v. Dir.,

C.I.A., No. 92-2561, 1993 WL 305970, at *2 (4th Cir. 1993)
(citing Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704,
712 (D.C. Cir. 1977)).

As discussed, the court has determined

that plaintiff is only eligible for fees related to the second
and third disclosures.

Consequently, the court will analyze

entitlement to fees only with respect to those two disclosures.
1.

Second Disclosure

With respect to the second disclosure on December 16,
2014, plaintiff provides no argument or evidence for why he
should be entitled to fees.

There is no evidence suggesting

that any of the documents disclosed on December 16 – whether
redacted or not - were “disseminat[ed] to the press and public,”
19

or even that they were relevant to any matters of public
interest or concern.
668.

Am. Bird Conservancy, 110 F. Supp. 3d at

Plaintiff does not explain how the documents were of

public benefit.

He might have done so by, for example, showing

that “members of the media [were] seeking the information,” but
there is no evidence of any such public interest in the
documents.

See Virginia-Pilot Media Companies, LLC v. Dep't of

Justice, 147 F. Supp. 3d 437, 451 (E.D. Va. 2015).

Plaintiff

has not provided evidence to show a private benefit to himself
or even the nature of his interest in the records, aside from
the obvious interest in obtaining records relating to his
underlying litigation.

Neither has he shown that the FOIA

exemptions that were cited by MSHA did not “at least constitute
a colorable basis” on which to withhold or redact certain
documents.

Aviation Data Serv., 687 F.2d at 1323.

This is very far indeed from the “positive and clear
showing of substantial public benefit” required here to entitle
one to fees under FOIA.

Aviation Data Serv., 687 F.2d at 1323.

Plaintiff simply neglects to provide any reasons for entitlement
to fees, seeming to assume that if he is eligible for fees, he
is also entitled to them.

See Reply 6.

Even if plaintiff had

provided some argument for entitlement to fees on the second
disclosure, no substantial public benefit is apparent from that

20

disclosure.

It involved four Memoranda of Interview that, like

those in the third disclosure discussed below, pertain to
Justice’s private complaints to MSHA.

One Memorandum, for

example, referenced a complaint related to the proper labeling
of controls on a piece of mining equipment, but there is no
evidence that the particulars of the complaint had any benefit
or impact on the public, or even beyond that single incident.
Decl. of Jay P. Mattos Ex. 12 at 6.
Without a showing of public benefit, Justice’s FOIA
request with respect to the second disclosure appears more akin
to a “substitute for discovery in private litigation” over the
underlying administrative claim.

Young, 1993 WL 305970, at *2.

Such a situation, however, is not one in which a court is to
award fees, and because plaintiff has not met his burden, he
cannot obtain fees with respect to the December 16, 2014
disclosure.
2.

Third Disclosure

As to the third disclosure of the two MOIs,
plaintiff’s briefing does at least proffer a piecemeal argument
that there was some benefit from the disclosure.

Plaintiff

suggests as follows: “the redacted MOIs . . . did in fact
include substantially valuable information as anticipated and
sought by Plaintiff. . . .

Those MOIs provided independent
21

corroboration of the Plaintiff’s protected activity.”

Reply 4.

Plaintiff states that:
Mr. Justice also serves as a miners’ representative
under the federal Mine Act, appointed by his coworkers
to accompany MSHA inspectors on behalf of Mr.
Justice’s fellow workers during safety inspections,
and to monitor the safety performance of the coal mine
where Mr. Justice works, pursuant to Sec. 103(f) of
the Mine Act. See e.g. 30 U.S.C. 813(f). Mr. Justice
accordingly has an interest in protecting the rights
not only of himself, but also of the other miners who
have selected him to represent them under the Mine
Act.
Resp. 7.
The redacted MOIs total only two pages each, and they
refer to incidents relating to Mr. Justice’s underlying
administrative complaint against MSHA.

While the details of

that complaint – since dismissed - are not relevant here, it is
important to note the limited nature of the MOIs.

The only

passage of the MOIs, noted by plaintiff, that is even
potentially publicly beneficial comes from the first MOI
regarding the MSHA interview conducted at 5:45 p.m. on December
3, 2014, involving a “post inspection conference” at which
plaintiff was in attendance.

The interviewee recalled that

[w]hile talking with management about the day’s
inspection activities [redacted] stated that a
discussion came up about union employees being
responsible for scaling top and ribs on the section.
At that point [redacted] stated Marshall Justice spoke
up and said something along the lines of, ‘I have
22

never heard that’ and a discussion about the work
description of union men continued.
Notice of Disclosure 8.
The first MOI is difficult to decipher, and plaintiff
has not provided any explanation of the public benefit behind
the disclosure of the quoted passage.

While the MOIs may

contain “independent corroboration of the Plaintiff’s protected
activity” as plaintiff claims, Reply 4, information regarding
plaintiff’s specific activities does not confer a public
benefit.

Conversely, the fact, pointed out by plaintiff, that

Mr. Justice is a miner’s representative under the Mine Act
suggests that he provides some salutary public benefit by his
contributions at work, but the MOIs themselves are limited to a
discussion of plaintiff’s private complaints and not his public
contributions.

The information in the MOI that “union employees

[were] responsible” for certain job tasks does not appear to
benefit the public in any substantial way.

Plaintiff has not

identified “the potential public value of the information
sought” in the MOIs, Davy v. C.I.A., 550 F.3d 1155, 1159 (D.C.
Cir. 2008), and they appear to the court only to concern
plaintiff’s private complaints.
Moreover, aside from their obvious relation to the
underlying action, plaintiff has not explained the nature of his

23

Plaintiff,
v.

Civil Action No. 15-14025

THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
interest in these MOIs, how they benefited him privately, or how
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
MSHA did not haveCorporation,“colorable basis” for withholding
a Massachusetts at least a and
DOES 1 THROUGH 10, inclusive,
or redacting certain documents under FOIA exemptions. Aviation
Defendants.
Data Serv., 687 F.2d at 1323. Without showing a public or even
ORDER AND NOTICE
some significant private benefit, plaintiff cannot demonstrate
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
that he is entitled to attorney’s fees bytime by of hiswhich
following dates are hereby fixed as the virtue or on
certain events must occur:
litigation over the two inspector MOIs.
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
such matter court does not need to motions
Consequently, thein support thereof. (Allreach the
unsupported by memoranda will be denied without
question of theprejudice pursuant to L.R. Civ. P. 7.1 (a)).
calculation of fees. Accordingly, the court
02/08/2016
Last day for Rule 26(f) meeting.
declines to award plaintiff with attorney’s fees.
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
III. Conclusion
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United reasons, it is ORDERED that
For the foregoingStates Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed attorney’s
plaintiff’s petition forto appear. fees and costs be, and it
02/29/2016
Entry of scheduling order.
hereby is, denied.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is requested to transmit copies of this
The Clerk is requested to transmit this Order and
order toto all counsel of record and tounrepresented parties.
Notice all counsel of record and any any unrepresented
parties.
DATED:
DATED:

March 31, 2017
January 5, 2016

John T. Copenhaver, Jr.
United States District Judge

24