Aguiar v. Executive Office of United States Attorneys

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHAN AGUIAR,
Plaintiff,
v. Civil Action No. 1:18-cv-02823 (CJN)
EXECUTIVE OFFICE OF U.S.
ATTORNEYS,
Defendant.
ORDER
The government has moved for summary judgment in this Freedom of Information Act
(FOIA) case, see generally Def.’s Mot. for Summ. J., ECF No. 14, while Plaintiff Stephan
Aguiar, proceeding pro se, has filed a Motion to Award Costs, see generally Pl.’s Mot. to Award
Costs (“Pl.’s Mot.”), ECF No. 22. In his Motion, Aguiar states that he “has decided not to
oppose the [government’s] Summary Judgment motion.” Pl.’s Mot. at 3. The government’s
Motion for Summary Judgment is therefore granted, and for the reasons that follow, Aguiar’s
Motion to Award Costs is denied.
Aguiar filed this lawsuit seeking documents relevant to several FOIA requests that
Aguiar lodged with the Executive Office of U.S. Attorneys (EOUSA). See generally Compl.,
ECF No. 1. Each request arises out of the U.S. Attorney’s Office for the District of Vermont’s
investigation into Aguiar “for drug trafficking using an investigative method that included
wiretapping his [cellphones].” Id. at 2. Aguiar filed the requests between 2016 and 2017. E.g.,
FOIA Request (Apr. 27, 2016) at 1, ECF No. 14-3 at 1; FOIA Request (Mar. 17, 2017) at 1, ECF
No. 14-3 at 21; FOIA Request (Mar. 20, 2017) at 1, ECF No. 14-3 at 33; FOIA Request (Apr. 10,
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2017) at 1, ECF No. 14-3 at 38; FOIA Request (May 19, 2017) at 1, ECF No. 14-3 at 46. While
the government’s response to each of Aguiar’s requests varied, the government has submitted
information showing that, after receipt of each request but prior to the filing of this lawsuit, it
responded by acknowledging receipt of the request, discussing the total cost of the searches,
asking Aguiar to narrow his requests, conducting narrowed searches, responding to Aguiar’s
request for a fee waiver, and releasing some documents. See Def.’s Statement of Undisputed
Material Facts ¶¶ 1–31, ECF No. 14-1.1 The government did, however, take additional steps
after Aguiar filed his lawsuit. E.g., id. ¶ 14 (informing Aguiar by a letter dated February 14,
2019, that EOUSA was withholding 124 records under various FOIA exemptions); id. ¶ 19
(stating that “EOUSA in a letter dated June 24, 2019[,] responded to Plaintiff’s request
2017-0809 indicating that 13 pages in full and 2 pages in part were provided to him”); id. ¶ 27
(noting that “[f]or three successive request[s] . . . , EOUSA sent Plaintiff a letter dated June 24,
2019[,] advising that it had searched for records in the USAO-VT and located over 100,000
pages of potentially responsive records”).
“The district court ‘may assess against the United States reasonable attorney fees and
other litigation costs reasonably incurred in any [FOIA] case . . . in which the complainant has
substantially prevailed.’” Summers v. Dep’t of Justice, 569 F.3d 500, 502 (D.C. Cir. 2009)
(quoting 5 U.S.C. § 552(a)(4)(E)(i)). “[A] plaintiff could show that it ‘substantially prevailed,’
. . . either by pointing to a favorable action by a court (now codified in the first prong of
§ 552(a)(4)(E)(ii)), or through the catalyst theory (now codified in the second prong).” Grand
Canyon Tr. v. Bernhardt, 947 F.3d 94, 96 (D.C. Cir. 2020) (citation omitted). Under the
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Aguiar does not dispute the record submitted by the government and even cites to it in support
of his Motion. See, e.g., Pl.’s Mot. at 5–6.
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“catalyst theory,” a plaintiff has substantially prevailed “by showing that [his] lawsuit
‘substantially caused the government to release the requested documents before final
judgment’”—even if the plaintiff did not receive a favorable action by the court. Id. at 96(quoting Brayton v. Office of U.S. Trade Representative, 641 F.3d 521, 524–25 (D.C. Cir.
2011)). But under the catalyst theory, “the mere filing of the complaint and the subsequent
release of the documents is insufficient to establish causation.’” Id. at 97 (quoting Weisberg v.
U.S. Dep’t of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984)). Instead, “the plaintiff has the
burden of showing ‘that it is more probable than not that the government would not have
performed the desired act absent the lawsuit.’” Id. (quoting Pub. Citizen Health Rsch. Grp. v.
Young, 909 F.2d 546, 550 (D.C. Cir. 1990)).
Aguiar argues that the record “demonstrates that the [government] fully complied with
his 2016/2017 FOIA/PA requests only after he filed his complaint in late-2018.” Pl.’s Mot. at 5.
The government disagrees, arguing that it “had already produced or was producing documents to
[Aguiar] and/or contacted [Aguiar] about narrowing the scope of the requests due to the high
fees associated with them[] and did not produce more documents or change its positions on the
fees as a result of the Complaint.” Defs.’ Mot. in Opp’n to Pl.’s Mot. at 3, ECF No. 24. Aguiar
responds that the government had originally “found and withheld in 2019 124 pages of
documents but months later found more,” Pl.’s Reply to Def.’s Opp’n at 2 (citation omitted), and
that “the evidence shows that the [government] was motivated to turn over or withhold
documents from [him] only after he filed his complaint,” id.Aguiar has not met his burden here. To start, as Aguiar implicitly concedes, there is no
“judicial order, or an enforceable written agreement or consent decree,” § 552(a)(4)(E)(ii)(I), that
compelled the government to produce documents or information it was withholding, so he cannot
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succeed under FOIA’s first prong. As for whether Aguiar can satisfy the so-called catalyst
theory, the record reflects that before this suit was filed, the government had been in contact with
Aguiar about his requests, worked with him to narrow his requests, and produced some
documents. While Aguiar is correct that the government did produce more documents and
update the numbers of documents it declared it was withholding after he filed the lawsuit, he has
not made clear how the lawsuit “substantially caused” these acts. Most of Aguiar’s assertions
appear to point to the timing of events—namely, that he filed his suit and then the government
released records. But pointing to that timeline, without more, is insufficient to establish the
necessary causality to recover fees. Grand Canyon Tr., 947 F.3d at 97 (“[T]he mere filing of the
complaint and the subsequent release of the documents is insufficient to establish causation.”
(citation omitted)). Aguiar has therefore not met his burden to show “that it is more probable
than not that the government would not have performed the desired act”—here, producing his
requested documents—“absent the lawsuit.” Id. (citation omitted).
Accordingly, it is hereby
ORDERED that the government’s Motion for Summary Judgment, ECF No. 14, is
GRANTED. It is further
ORDERED that Aguiar’s Motion to Award Costs, ECF No. 22, is DENIED.
The Clerk of Court is DIRECTED to terminate the case.
It is so ORDERED.
DATE: July 27, 2020
CARL J. NICHOLS
United States District Judge
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