People for the Ethical Treatment of Animals v. National Institutes of Health, Department of Health and Human Services
130 F. Supp. 3d 156
D.D.C.2015Background
- PETA submitted three FOIA requests to NIH seeking records about alleged animal-welfare violations and NIH’s response to complaints regarding three Auburn University researchers; NIH produced some material for the first request and issued Glomar (neither confirm nor deny) responses to the second and third.
- PETA sued in 2010 asserting FOIA violations (failure to disclose non-exempt records) and an APA claim challenging an alleged NIH–Auburn confidentiality agreement; Counts I and III were conceded/dismissed; Count II challenged NIH’s blanket Glomar response to the Second and Third Requests.
- The district court granted summary judgment to NIH on Count II; the D.C. Circuit affirmed in part, vacated in part, and remanded, holding that NIH could not Glomar as to a narrower category: documents showing NIH conducted an investigation in response to complaints that did not target the named researchers.
- On remand NIH searched and determined it had no record of receiving the August 2006 complaint letter and found no responsive documents in the narrower category identified by the D.C. Circuit.
- PETA sought $219,967.07 in attorneys’ fees and $7,273.21 in costs under FOIA; NIH opposed eligibility and the amount. The district court found PETA eligible and entitled to fees but reduced the award to 10% of the requested amount, awarding $22,724.03.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PETA "substantially prevailed" under FOIA (eligibility) | D.C. Circuit’s remand ordering a search for a category of non-exempt documents is judicial relief making PETA eligible | Relief was meager and produced no disclosure, so PETA did not substantially prevail | PETA was eligible: the Circuit’s order changed the legal relationship and required action by NIH |
| Whether PETA is entitled to fees (discretionary factors) | Nonprofit public-interest suit with public-value records; little/no commercial benefit; agency position unreasonable | NIH’s Glomar response was reasonable given the heartland of requested documents was properly protected | Entitlement: awarded fees—public-benefit neutral, plaintiff’s interest and commercial factors favor PETA, reasonableness favors NIH; overall discretionary award appropriate |
| Whether NIH’s withholding was legally reasonable | NIH asserted privacy and Glomar improperly for some categories, continuing an unreasonable position after knowing it lacked the August 2006 letter | Glomar was reasonable for documents that would reveal an investigation of the named researchers; the position had a lawful basis | NIH’s position was reasonable; it was not obdurate or recalcitrant |
| Proper amount of fees and costs (reasonableness) | Fees reflect hours spent on Count II only and include a 25% reduction; seeks full Laffey-based amount | Degree of success was very limited, so requested fees are disproportionate and unreasonable | Reduced award to 10% of requested fees and costs ($22,724.03) because PETA’s success was narrow and produced no actual disclosures |
Key Cases Cited
- Campaign for Responsible Transplantation v. FDA, 511 F.3d 187 (D.C. Cir.) (defining "judicial relief on the merits" that changes legal relationship for fee eligibility)
- Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598 (U.S. 2001) (judicially ordered change in legal relationship required for fee eligibility)
- Davy v. CIA, 550 F.3d 1155 (D.C. Cir.) (factors for FOIA fee entitlement and public-interest requester treatment)
- Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363 (D.C. Cir.) (standards for FOIA fee awards and substantial prevailing inquiry)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (degree of success is crucial in sizing fee awards)
- Farrar v. Hobby, 506 U.S. 103 (U.S. 1992) (extent of plaintiff’s success critical to fee reduction)