Environmental Integrity Project v. Environmental Protection Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ENVIRONMENTAL INTEGRITY
PROJECT,
Plaintiff,
v. Civil Action No. 17-1203 (JDB)
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant.
MEMORANDUM OPINION
Plaintiff Environmental Integrity Project (“EIP”) brought this action against Defendant
Environmental Protection Agency (“EPA”) seeking records of former EPA Administrator Scott
Pruitt’s travel vouchers and schedule of meetings with outside parties. EPA has since provided all
requested documents to EIP. Claiming that it has “substantially prevailed” in its suit, EIP now
moves the Court for attorneys’ fees pursuant to the fee-shifting provision of 5 U.S.C. §
552(a)(4)(E)(i). For the following reasons, the Court finds that EIP has not substantially prevailed
in this FOIA litigation, and thus is not eligible for an award of attorneys’ fees.
BACKGROUND
On May 18, 2017, EIP submitted a FOIA request to EPA seeking records of former EPA
Administrator Scott Pruitt’s meetings with outside parties and records of his travel from his first
day at EPA, February 21, 2017, through the request date. Am. Compl. [ECF No. 17] ¶¶ 21, 24.
When the EPA Office of the Executive Secretariat (“OEX”) received EIP’s request, it determined
that the Administrator’s calendar and travel vouchers would be responsive. Decl. of Elizabeth
White, Ex. 1 to Opp’n to Pl.’s Mot. for Att’ys’ Fees [ECF No. 28-1] ¶ 13. The same day that EIP
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submitted its request, the OEX received Administrator Pruitt’s calendar through March 31, 2017
from the staff at the Immediate Office of the Administrator (“OA”)1 in response to separate FOIA
requests from third parties. Id. ¶ 14. While this calendar set was responsive to part of EIP’s
request, it did not satisfy it in full. Mem. of P & A in Supp. of Pl.’s Mot. for Att’ys’ Fees (“Pl.’s
Mem.”) [ECF No. 24-1] at 2–3. OEX staff requested the additional responsive calendar records
and travel vouchers from the OA, but the OA was in transition, and its staff changed several times
during the twenty-day statutory period. Decl. of Elizabeth White ¶ 15; Opp’n to Pl.’s Mot. for
Att’ys’ Fees (“Def.’s Opp’n”) [ECF No. 28] at 4. Although the OEX requested the additional
calendar records four times within this period, its efforts were unsuccessful. Decl. of Elizabeth
White ¶ 15. On June 13, 2017, OA staff did provide OEX with the responsive travel vouchers, but
the vouchers required review before sending to EIP. Id. ¶¶ 19–21. Twenty-one days after the
FOIA request was received, on June 19, 2017, EPA sent EIP the calendar records through March
31, 2017 but did not provide a date by which it would finish production. Id. ¶¶ 17–18. EIP
confirmed that the calendar records were responsive to its request for those dates. Ex. 1 to
Proposed Briefing Sched. [ECF No. 10-1] at 2. Later that day, EIP filed its complaint. Decl. of
Elizabeth White ¶ 18.
One month later, on July 18, 2017, EPA produced the reviewed travel vouchers, and EIP
confirmed that the production was responsive to its request. Am. Compl. ¶ 25. On September 27,
2017, EPA produced partially redacted calendars through May 18, 2017, which included updated
records of the February 21 through March 31 calendar previously provided, plus an additional
travel voucher. Decl. of Elizabeth White ¶¶ 25–26, 30. In the months that followed, EIP raised
various questions concerning the bases for redactions in the produced documents. Id. ¶ 31. On
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The Immediate Office of the Administrator (OA) is the office responsible for maintaining the
Administrator’s calendar and handling his travel arrangements. Decl. of Elizabeth White ¶ 8.
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December 5, 2017, EPA re-released four revised calendar pages which had been redacted in error
and removed other redactions as a discretionary matter. Id.; Pl.’s Mem. at 6. EIP then informed
EPA that it was satisfied that the information provided resolved its FOIA request. Pl.’s Mem. at
6. EIP subsequently moved for attorneys’ fees. Mot. for Att’ys’ Fees [ECF No. 24].
LEGAL STANDARD
A court may “assess reasonable attorney fees and other litigation costs reasonably
incurred” in the course of FOIA litigation in which the complainant has “substantially prevailed.”
5 U.S.C. § 552(a)(4)(E)(i). Whether an award of attorneys’ fees is proper depends on a two-step
inquiry of (1) eligibility and (2) entitlement. See Church of Scientology of Cal. v. Harris, 653 F.2d
584, 587 (D.C. Cir. 1981). There is no presumption in favor of awarding fees to complainants
who ultimately receive documents, and the court has “broad discretion” when considering whether
to grant an award of attorneys’ fees. Hall & Associates v. EPA, 210 F. Supp. 3d 13, 19 (D.D.C.
2016) (citing Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 713–14 (D.C. Cir. 1977)
(“The single most important element under [FOIA’s attorneys’ fees provision], however, is the
[district] court’s discretion.”)). The fee-shifting provision of FOIA is not meant to punish an
agency for delays in processing requests, but to reward plaintiffs whose lawsuits alter an agency’s
slowness and bring about disclosure. Terris, Pravlik, & Millian, LLP v. Ctrs. for Medicare &
Medicaid Servs., 794 F. Supp. 2d 29, 38 (D.D.C. 2011).
To satisfy the first step, the complainant must “substantially prevail,” which means that the
institution and prosecution of litigation caused the agency to release responsive documents.
Church of Scientology of Cal., 653 F.3d at 587 (citing Cox v. U.S. Dep’t of Justice, 601 F.2d 1, 6
(D.C. Cir. 1979)). A complainant may “substantially prevail” by obtaining relief through a
“judicial order, or an enforceable written agreement or consent decree” or by obtaining a
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“voluntary or unilateral change in position” by the agency. 5 U.S.C. § 552(a)(4)(E)(ii)(I)–(II);
Elec. Privacy Info. Ctr. (“EPIC”) v. U.S. Dep’t of Homeland Sec., 218 F. Supp. 3d 27, 38 (D.D.C.
2016). Whether a plaintiff has “substantially prevailed” is “a question of fact for the District Court
. . . .” Terris, Pravlik, & Millian, LLP, 794 F. Supp. 2d at 34.
To satisfy the second step, the plaintiff must establish that it is entitled to receive attorneys’
fees. Entitlement is based on factors including: “(i) the public benefit from the case; (ii) the
commercial benefit to the plaintiff; (iii) the nature of the plaintiff’s interest in the records; and (iv)
the reasonableness of the agency’s withholding of the requested documents. Morley v. CIA, No.
17-5114, 2018 WL 3351383 at *1 (D.C. Cir. July 9, 2018) (citing Davy v. CIA, 550 F.3d 1155,
1159 (D.C. Cir. 2008)). However, the Court need not proceed to the entitlement prong if the
eligibility prong is not met. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521,
524 (D.C. Cir. 2011).
ANALYSIS
EIP argues that it is eligible for attorneys’ fees under the “catalyst theory” because its
lawsuit caused EPA to change its position by producing the responsive documents. Pl.’s Mem. at
8. Specifically, EIP contends that: “(i) EPA changed its position when it released records
responsive to EIP’s FOIA request after stating earlier in its answer that EIP was not entitled to the
relief sought; (ii) EIP’s lawsuit caused EPA to process records more quickly than it would have
without the litigation; and (iii) EIP’s amended complaint alleging improper withholding caused
EPA’s discretionary disclosure of records previously redacted under FOIA exemptions.” Id. EIP
also briefly asserts that the Court’s August 21, 2017 briefing schedule order constitutes a “court
order” under 5 U.S.C. § 552(a)(4)(E)(ii)(I). Id. at 9. In opposition, EPA asserts that the lawsuit
was not necessary to compel the production of documents because EPA began searching for
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records before EIP filed its complaint, and, upon actual and reasonable notice of the request, EPA
made a good-faith effort to search for responsive records and decide whether such material should
be disclosed. Def.’s Opp’n at 9.
To “substantially prevail” and receive attorneys’ fees, EIP must prove that it caused a
voluntary or unilateral change in EPA’s position by filing its complaint. See Conservation Force
v. Jewell, 160 F. Supp. 3d 194, 205 (D.D.C. 2016) (quoting Weisberg v. U.S. Dep’t of Justice, 745
F.2d 1476, 1496 (D.C. Cir. 1984)). The key question under the “catalyst theory” is whether “the
institution and prosecution of the litigation cause[d] the agency to release the documents obtained
during the pendency of the litigation.” Church of Scientology of Cal., 653 F.2d at 588. There
must be a causal nexus between the initiation of litigation and the agency’s surrender of the
requested information, and a plaintiff must do more than claim post hoc, ergo propter hoc (“after
this, therefore because of this”) to prove that a causal nexus exists. See Pub. Law Educ. Inst. v.
U.S. Dep’t of Justice, 744 F.2d 181, 183 (D.C. Cir. 1984). In the context of attorneys’ fees, “the
mere filing of the complaint and the subsequent release of the documents is insufficient to establish
causation.” Codrea v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 272 F. Supp. 3d 49,
53 (D.D.C. 2017) (quoting Weisberg, 745 F.2d at 1496). If an “unavoidable delay accompanied
by due diligence in the administrative processes was the actual reason for the agency’s failure to
respond to a request, it cannot be said that the complainant substantially prevailed in [its] suit.”
Church of Scientology of Cal., 653 F.2d at 588 (quoting Cox, 601 F.2d at 6).
A. EPA’S RELEASE OF RESPONSIVE AND PREVIOUSLY REDACTED RECORDS
EIP claims that EPA changed its position when it complied with EIP’s FOIA request after
its answer had stated that EIP “failed to state a claim on which relief can be granted,” and denied
that it had “knowledge or information sufficient to form a belief as to whether it has possession,
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custody, and control of the particular records Plaintiff seeks.” Pl.’s Mem. at 9; Def.’s Answer
[ECF No. 8] ¶ 15. The key question is whether “hard evidence—beyond temporal proximity—
supports the inference that the plaintiff’s lawsuit caused the document release.” Conservation
Force, 160 F. Supp. 3d at 206 (finding no hard evidence beyond temporal proximity where “[n]o
averments or other facts in the instant record indicate that Defendants only produced these
documents because of [Plaintiff’s] lawsuit … nor was there any about-face from an initial agency
refusal”); see also Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Justice, 750 F.2d 117,
120 (D.C. Cir. 1984) (“Absent any evidence on the matter, the natural inference is that [defendant]
was simply responding to [plaintiff’s] request.”).
Here, it does not appear that EPA did in fact change its position, much less that the lawsuit
caused such a change. The fact that EPA asserted the affirmative defense that EIP failed to state
a claim that EPA violated FOIA does not suggest EPA was unwilling to answer the FOIA request.
Similarly, EPA’s assertion that it had insufficient information to determine whether it possessed
the requested documents does not suggest that EPA was refusing to search for the records. EPA
had made requests internally for the records before the lawsuit was ever filed. Decl. of Elizabeth
White ¶¶ 13–15, 19. Nothing in EPA’s answer suggests that the agency refused to search for or
release responsive documents to EIP prior to EIP’s filing of the complaint. Cf. Dorsen v. SEC, 15
F. Supp. 3d 112, 119–20 (D.D.C. 2014) (finding plaintiff was eligible for attorneys’ fees after
agency initially withheld responsive documents and released the documents one day after
complaint was filed). Absent evidence in the record to support that EPA only complied because
of the lawsuit, the natural inference is that EPA was simply responding to EIP’s request by
releasing the responsive records. See Pyramid Lake Paiute Tribe of Indians, 750 F.2d at 120.
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EIP also asserts that EPA’s decision to release corrected and previously redacted records
after EIP filed an amended complaint demonstrates further “voluntary or unilateral change in
position.” Pl.’s Mem. at 10. But EIP and EPA began discussing the redactions on September 27,
2017, and EIP did not file its amended complaint until October 12, 2017. Decl. of Elizabeth White
¶ 31; Am. Compl. [ECF No. 17]. While it may be relevant that a defendant released documents
after a plaintiff filed the complaint as a purely chronological matter, “it is also clear beyond cavil
that the catalyst method requires more.” Conservation Force, 160 F. Supp. 3d at 206. EIP does
not claim any causal nexus between the Amended Complaint and EPA’s disclosures besides
temporal proximity, which is insufficient to prove causation. EIP’s bare reliance on “post hoc,
ergo propter hoc” fails to establish a causal nexus between the litigation and release. See Pub.
Law Educ. Inst., 744 F.2d at 183.
EIP’s reliance on Judicial Watch v. U.S. Department of Justice, 878 F. Supp. 2d 225(D.D.C. 2012), to support its claim is misplaced. There, the defendant’s production of previously-
withheld documents resulted from the agency’s review of records conducted after the end of
administrative processing and in the course of preparing for litigation. Id. at 233. The court
therefore held that the defendant agency’s discretionary disclosure of previously-withheld
documents while preparing a motion for summary judgment constituted a “voluntary or unilateral
change in position.” Id. at 232–33. But unlike the agency there, here EPA did not defend its
redactions throughout administrative proceedings and litigation; instead, EPA promptly conferred
with EIP and sought to address EIP’s concerns. See Decl. of Elizabeth White ¶ 31. Hence, the
connection between this suit and EPA’s release of redacted documents is too attenuated to indicate
that EIP substantially prevailed and is eligible for attorneys’ fees.
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B. EPA’S DELAY IN PRODUCING RESPONSIVE RECORDS
EIP next asserts that EPA’s production of responsive records two days before filing its
initial answer, after failing to provide an estimated date by which it would make the production,
constitutes a “sudden acceleration” following a delay that supports the conclusion that the lawsuit
caused EPA’s FOIA compliance. Pl.’s Mem. at 10. EPA does not dispute that there was a delay
in production, but claims that the delay was unavoidable and that it exercised due diligence. Def.’s
Opp’n at 13.
“Sudden acceleration” in the processing of a FOIA request resulting in disclosure made
after a lawsuit is filed may “lead a court to conclude that . . . the filing of the lawsuit was the real
reason for that acceleration.” Terris, Pravlik, & Millian, LLP, 794 F. Supp. 2d at 38 (citing Crooker
v. U.S. Dep’t of the Treasury, 663 F.2d 140 (D.C. Cir. 1980)). However, if an “unavoidable delay
accompanied by due diligence in the administrative processes 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 [its] suit.” Church of Scientology of Cal., 653 F.2d at 588 (quoting Cox, 601 F.2d at
6). Courts have found that a delay may be unavoidable when the agency is insufficiently staffed
to respond to FOIA requests. See Conservation Force, 160 F. Supp. 3d at 206 (finding no causal
nexus when defendant’s delayed release was caused by the agency having only one employee
tasked with processing FOIA requests, having a policy of processing FOIA requests in sequential
order, and mistakenly referring the plaintiff’s request to a different agency for processing).
When EIP filed its FOIA request, OEX had only three staff members responsible for
reviewing and processing records potentially responsive to FOIA requests; the same three staffers
were also dealing with over 100 backlogged FOIA requests from the previous year. Decl. of
Elizabeth White ¶¶ 8, 10. At the time, EPA faced a 1200% increase in FOIA requests compared
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with the same time period the previous year. Id. ¶ 9. EPA also faced ten pending lawsuits on
FOIA requests, over which the same three OEX employees presided. Id. ¶ 11. During August and
September of 2017, while EPA was preparing to produce the remaining calendar and travel
records, the Chief of Staff’s ability to review records was hindered by the impact of Hurricanes
Harvey, Irma, and Maria. Id. ¶ 29. All of these factors support the conclusion that unintentional
administrative burdens and unavoidable outside factors delayed EPA’s response, and that EIP’s
lawsuit did not cause the eventual release.
The record also demonstrates that in the face of these unavoidable factors, EPA exercised
due diligence to ensure the request was processed. Courts have held that a plaintiff’s lawsuit was
not the catalyst for an agency’s delayed release of documents when the defendant made a good-
faith effort to search for information and respond to the FOIA request, and the ultimate release was
the result of a diligent, ongoing process that began before the initiation of the lawsuit. See, e.g.,
Calypso Cargo Ltd. v. U.S. Coast Guard, 850 F. Supp. 2d 1, 5 (D.D.C. 2011) (holding that Coast
Guard had begun processing request shortly after receiving it and before plaintiff filed complaint);
Bigwood v. Def. Intelligence Agency, 770 F. Supp. 2d 315, 321 (D.D.C. 2011) (holding that
although production was “extraordinarily delayed,” the agency searched for and reviewed
documents prior to litigation, so no causal nexus existed between the litigation and release). Here,
EPA conducted a search for responsive documents before EIP filed the complaint. Decl. of
Elizabeth White ¶¶ 13, 20. On the same day EIP filed its FOIA request, EPA obtained a partially
responsive version of Administrator Pruitt’s calendar and then later sent it to EIP before litigation
commenced. Id. ¶ 14. Also before EIP filed the complaint, OEX staff requested the remaining
responsive calendar files from OA and received the travel voucher records from OEX. Id. ¶¶ 15,
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19. These actions reflect a good faith effort to respond to EIP’s request and a diligent ongoing
process that began before the initiation of the lawsuit.
EIP points to statements made in the course of litigation to support its assertion that EPA
was not in fact exercising due diligence. Because EPA asserted in its answer the affirmative
defense that EIP’s request was “overbroad” and EPA did not request clarification of the request,
EIP claims EPA’s searches for documents must not have been reasonable. Reply in Supp. of Pl.’s
Mot. for Att’ys’ Fees and Costs [ECF No. 31] at 8. Failure to request clarification could result in
an ineffectual search not reasonably calculated to produce responsive results. See, e.g., Pinson v.
U.S. Dep’t of Justice, 61 F. Supp. 3d 164, 180–81 (D.D.C. 2015) (finding the government’s search
was not “reasonable [or] adequate” when it did not request necessary supplemental information
before running the search). Here, however, nothing suggests that EPA lacked sufficient
information or that its searches were not calculated to locate responsive documents. EPA had
already released some calendar records to EIP before the filing of the lawsuit and then released
responsive travel records before it filed its answer. Decl. of Elizabeth White ¶¶ 18, 21. It appears
that clarification of EIP’s request was unnecessary—and indeed was not provided.
EPA’s failure to use FOIA’s statutory mechanisms to extend its time to respond to EIP’s
request also is not indicative of a lack of due diligence. An agency may extend FOIA’s twenty-
day statutory time limit by notifying the requester and providing the requester with an opportunity
to either limit the scope of the request or arrange an alternate time frame. 5 U.S.C. §
552(a)(6)(B)(i)–(ii). An agency that does not take advantage of FOIA’s statutory mechanisms to
extend its response time cannot rely on the administrative exhaustion requirement as a bar to
judicial review. 5 U.S.C. § 552(a)(6)(C)(i); Citizens for Responsibility & Ethics in Wash. v. Fed.
Election Comm’n, 711 F.3d 180, 190 (D.C. Cir. 2013). However, “not all agency delay or failure
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to comply with FOIA’s procedural requirements will warrant judicial intervention . . . .” Judicial
Watch v. U.S. Dep’t of Homeland Sec., No. 16-5339, slip op. at 19 (D.C. Cir. July 17, 2018) (citing
5 U.S.C. § 552(a)(6)(c)). Here, EPA did not inform EIP of its intent to fulfill the request or provide
EIP a date by which it would finish the production within the twenty-day statutory timeline. Am.
Compl. ¶ 23; Decl. of Elizabeth White ¶ 17. Although such a failure may support a claim that an
agency has a policy or practice of violating FOIA’s procedural requirements, see Judicial Watch
v. U.S. Dep’t of Homeland Sec., No. 16-5339, slip op. at 3 (D.C. Cir. July 17, 2018), it does not
suggest in this case that EPA lacked due diligence in responding to EIP’s request. Given that EPA
has not relied on the administrative exhaustion requirement to bar this lawsuit and began
processing and responding to EIP’s request before EIP filed its complaint, EPA’s failure to adhere
to statutory mechanisms does not establish that EIP’s lawsuit caused EPA’s release of responsive
documents.
C. THE COURT’S AUGUST 21, 2017 ORDER
EIP also suggests that it has “substantially prevailed” because the Court’s August 21, 2017
scheduling order constitutes a “judicial order, or an enforceable written agreement or consent
decree” through which it obtained relief. See Pl.’s Mem. at 9; 5 U.S.C. § 552(a)(4)(E)(ii)(I). A
scheduling order may constitute such “relief” when it requires the defendant to produce responsive
documents by a particular date. See EPIC, 218 F. Supp. 3d at 39 (holding that a Scheduling Order
requiring the defendant agency to produce documents by a certain date changed the legal
relationship of the parties and caused the plaintiff to substantially prevail.). But the August 21,
2017 order merely required EIP and EPA to confer on and submit a proposed briefing schedule for
the filing of dispositive motions. Unlike mandating the production of documents by a specific
date, ordering the parties to confer on a briefing schedule does not change their legal relationship.
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See EPIC, 218 F. Supp. 3d at 39. More fundamentally, the August 21, 2017 Order did not provide
EIP with any “relief.” Hence, EIP’s motion for attorneys’ fees cannot prevail on the judicial order
theory.
CONCLUSION
EIP has failed to demonstrate that it substantially prevailed in its FOIA litigation.
Therefore, it is not eligible to recover under the cost-shifting provision of FOIA, and its Motion
for Attorneys’ Fees is denied. A separate order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: July 25, 2018
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