794 F. Supp. 2d 29
D.D.C.2011Background
- TPM is a law firm that monitored and enforced the Salazar Settlement Order in D.C. litigation.
- CMS is a federal agency under HHS and the Records Access Officer for CMS handles FOIA requests.
- TPM submitted a FOIA request on Oct 11, 2005 seeking records about monitoring the remedial order; CMS acknowledged and processed the request in phases.
- CMS ultimately released 1,872 pages in Sept 2010 and earlier 174 pages in July 2010, with no records responsive to some items.
- The court granted TPM’s motion for attorney’s fees? no; TPM is deemed ineligible for fees under 5 U.S.C. § 552(a)(4)(E) and not entitled to discretionary fees; a separate consent order addressed settlement but not fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FOIA fee eligibility post-OPEN Act amendment | TPM substantially prevailed via litigation. | No voluntary change in CMS position; no court order or agreement. | TPM not eligible for fees. |
| Whether TPM substantially prevailed under amended FOIA standard | Disclosures post-litigation show reliance on litigation. | Disclosures were backlog-driven, not caused by suit. | No substantial prevailment; fees denied. |
| Whether TPM should recover fees despite lack of agency withholding basis | Public benefit from readings aiding class in Salazar. | No public benefit; no withholding justified; benefits to TPM only. | No entitlement to fees. |
| Discretionary factors for fee award under FOIA not met | There is public/professional benefit and TPM acted for public interest. | No public benefit beyond TPM’s private litigation needs. | Court declines to award fees. |
| Adequacy of evidence to rebut CMS declarations | CMS knowledge of suit influenced disclosures. | Declarations credibly show backlog-driven disclosure independent of suit. | No credible basis to overturn declarations; no fees. |
Key Cases Cited
- Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856 (D.C.Cir.1981) (causality in FOIA delay and fee awards)
- Cox v. U.S. Dep't of Justice, 601 F.2d 1 (D.C.Cir.1979) (no post hoc analysis; require necessary litigation to obtain information)
- Judicial Watch, Inc. v. Bureau of Land Mgmt., 610 F.3d 747 (D.C.Cir.2010) (four-part test for substantial prevailment post-Amendment)
- Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521 (D.C.Cir.2011) (amendment aligns eligibility with pre-Buckhannon standard)
- Marin v. U.C.,?, - (-) (placeholder not used)