National Security Counselors v. Central Intelligence Agency
15 F. Supp. 3d 88
D.D.C.2014Background
- In 2010 Kelly B. McClanahan submitted four FOIA requests on behalf of "National Security Counselors" (two to CIA, two to DIA); the organization was chartered in 2009 and incorporated in January 2011.
- National Security Counselors filed suit on February 28, 2011 alleging FOIA violations; one count was settled, others proceeded to summary judgment briefing.
- After defendants moved for summary judgment and produced records or stated no responsive records existed, National Security Counselors voluntarily dismissed remaining claims in April 2013.
- McClanahan seeks attorney’s fees under FOIA as counsel for National Security Counselors; he served as requester and sole attorney in this and many other FOIA matters.
- The government opposes fees, arguing McClanahan essentially acted pro se (no independent client), fees are excessive, and the organization is not distinct from him.
- The court found the record shows no meaningful separation between McClanahan and National Security Counselors (one-person operation, no evidence of independent client relationship) and denied the fee petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney’s fees under FOIA may be awarded to McClanahan acting for National Security Counselors | National Security Counselors is a separate organization that employed McClanahan as counsel and thus may recover fees | McClanahan was effectively pro se/sole actor; no independent client exists to justify fee award | Denied — no distinct client; McClanahan not eligible to recover fees under FOIA |
| Whether formal incorporation/EIN suffices to establish independent client status | Incorporation and EIN show NSC is a separate legal entity entitled to fees | Formalities are insufficient where the organization functions as McClanahan’s alter ego and lacks independent officers/staff | Denied — incorporation/EIN alone do not establish independence here |
| Whether awarding fees would be appropriate given litigation posture (dismissal/productions) | Prevailing party status supports fee award after favorable developments | Even if some success occurred, eligibility bars fee recovery where plaintiff is essentially the attorney | Denied — threshold eligibility controls; substantive success insufficient absent distinct client |
| Whether there is risk of creating a FOIA "cottage industry" | NSC advances public-interest FOIA work and should be compensated | Repeated single-attorney requests without separate clients risk subsidizing self-serving activity | Court cites risk and declines to award fees to prevent subsidizing sole-attorney operations |
Key Cases Cited
- Tax Analysts v. Dep’t of Justice, 965 F.2d 1092 (D.C. Cir.) (district courts may award fees to FOIA plaintiffs who substantially prevail)
- Kay v. Ehrler, 499 U.S. 432 (1991) (an attorney representing himself may not recover attorney’s fees under fee-shifting statutes because the "attorney" presumes an attorney-client agency relationship)
- Falcone v. IRS, 714 F.2d 646 (6th Cir.) (denying fees to pro se attorneys; both client and attorney are required for fee awards)
- Burka v. U.S. Dep’t of Health & Human Servs., 142 F.3d 1286 (D.C. Cir.) (Circuit holding that Kay applies to FOIA; pro se attorneys are not entitled to FOIA fee awards)
- Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312 (D.C. Cir.) (law firm attorneys acting as sufficiently independent agents may recover fees for representing their firm)