Citizens for Responsibility & Ethics v. United States Department of Justice
83 F. Supp. 3d 297
D.D.C.2015Background
- CREW filed FOIA requests in Feb 2011 seeking DOJ/FBI records related to investigations of Rep. John Murtha and associates.
- FBI initially withheld records under FOIA Exemption 7(A) (would interfere with ongoing enforcement).
- CREW sued in June 2011; during litigation some investigations closed and the FBI began segregating and releasing portions of responsive material in stages (Oct 2011, Nov 2011, Jan 2012, and later limited redactions disclosed).
- EOUSA and DOJ Criminal Division located little or no responsive producible material and withheld or produced no documents; CREW did not challenge those substantive withholdings.
- CREW moved for $25,922.12 in attorneys’ fees and $450 costs under 5 U.S.C. § 552(a)(4)(E); DOJ opposed.
- The district court denied fees, concluding CREW did not “substantially prevail” because agency disclosures were caused by the closing of investigations (an extrinsic event), not by the litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CREW is eligible for FOIA fees ("substantially prevailed") under the catalyst theory | CREW argued its lawsuit caused the FBI and other components to release documents and clarify withholdings, so it substantially prevailed | DOJ argued disclosures resulted from the closing of investigations and settlement negotiations, not the lawsuit; EOUSA/Criminal Division produced no documents | Court held CREW not eligible: causation lacking because releases were due to extrinsic events (investigation closures) and not compelled by litigation |
| Whether post-filing clarifications of exemption justifications can make plaintiff a prevailing party | CREW contended clarifications and final responses show litigation caused agency action | DOJ said clarifications alone without document release are insufficient for "prevailing party" status | Court held explanations/clarifications without tangible releases do not satisfy "substantially prevailed" requirement |
| Whether timing of releases (post-filing, multi-stage) establishes causation | CREW urged temporal proximity shows causal nexus | DOJ urged timing is not dispositive; must show lawsuit was necessary for disclosure | Court held timing alone is insufficient; must show litigation caused disclosure |
| Whether EOUSA/Criminal Division responses (but no production) confer eligibility | CREW argued their final responses were motivated by the suit | DOJ noted no documents were released; any response without release does not confer prevailing-party status | Court held no fee eligibility where agencies produced no documents despite issuing final responses |
Key Cases Cited
- Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476 (D.C. Cir.) (two-step FOIA fee inquiry: eligibility and entitlement)
- Church of Scientology of Cal. v. Harris, 653 F.2d 584 (D.C. Cir.) (catalyst theory requires litigation to cause agency release)
- Davis v. U.S. Dep’t of Justice, 610 F.3d 750 (D.C. Cir.) (plaintiffs eligible if lawsuit substantially caused release)
- Davy v. Central Intelligence Agency, 550 F.3d 1155 (D.C. Cir.) (factors for awarding fees)
- Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092 (D.C. Cir.) (fee-entitlement factors and public/commercial benefit considerations)