UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSEPH POETT,

Plaintiff, Civil Action No. 08-0622 CKK/DAR v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending for determination by the undersigned Magistrate Judge is Plaintiff’s Motion for

Attorney’s Fees and Costs of Suit (“Plaintiff’s Motion”) (Document No. 23). Upon

consideration of the motion, the memoranda in support thereof and in opposition thereto, and the

entire record herein, Plaintiff’s motion will be denied.

BACKGROUND

On April 10, 2008, Plaintiff brought suit alleging violations of the Freedom of

Information Act (“FOIA”),

. As relief, Plaintiff requested declaratory and

injunctive relief, as well as “reasonable attorneys fees and other litigation costs reasonably

incurred by Joseph Poett in prosecuting this case[.]” Complaint (“Compl.”) (Document No.1) at

8-9. Plaintiff’s Complaint was based upon his June 21, 2007 request to the Federal Bureau of

Investigation (“FBI”) for “all documents, and information in your possession or utilized by you

in reaching the Decision to deny Joseph Poett access to select agents and toxins as set forth Poett v. United States Dept. of Justice 2

herein.” Compl., Ex. 1 at 2 (Document No. 1-2).1 In requesting said documents and information,

Plaintiff sought to “ascertain the identity of the organization he was allegedly involved with, the

acts he allegedly took, and the dates and times of the alleged actions he took.” Compl., ¶ 9. As

stated in the June 21, 2007 request, Plaintiff’s ultimate goal was “to defend himself against the

charge of knowing involvement with an organization that engages in intentional crimes of

violence[.]” Compl., Ex. 1 at 2.

The FBI responded to the June 21, 2007 FOIA request on October 15, 2007 by disclosing

“[five] pages of documents pertaining to [Plaintiff’s] request and a copy of the explanation of

exemptions.” Compl., Ex. 3 at 1. This response also advised Plaintiff of his right to file an

administrative appeal.

Plaintiff filed an administrative appeal with the United States

Department of Justice Office of Information and Privacy (“OIP”). On December 31, 2007, OIP

affirmed the findings of the FBI, namely that Plaintiff’s request was exempt from review under 5

U.S.C. § 552a(j)(2) and therefore only reviewable under

. Compl., Ex. 5 at 1.

OIP further found that certain information was classified under Executive Order No. 12958 and

thus properly exempt from disclosure under

(b)(1),2 and that other documents

were properly exempt under

(b)(2) and

(b)(7)(c).

OIP also

advised Plaintiff that records responsive to his request may be located at the FBI St. Louis Field

Office and recommended that Plaintiff consider filing a new request directed to the St. Louis

Field Office, consistent with

(a), 16.41(a) (2007). Compl., Ex. 5 at 2. On

1 Plaintiff, a chemist employed by the Department of Agriculture, had been placed on administrative leave based upon a decision that he had been knowingly involved with an organization which engages in intentional crimes of violence.

2 OIP stated that although it found certain information to be classified under Executive Order No. 12958, it referred the information to the Department of Justice’s Department of Review Committee for determination of whether the information should remain classified. See Compl., Ex. 5 at 1 (Document No. 1-2). Poett v. United States Dept. of Justice 3

April 10, 2008, Plaintiff filed suit in this Court requesting a release of all records responsive to

his June 21, 2007 FOIA request. (Defendant’s Opposition to Plaintiff’s Motion for Attorney’s

Fees and Costs of Suit) (Def. Opp’n.) (Document No. 25) at 3.

Meanwhile, in a concurrent action also filed by Plaintiff, the Department of Justice

released, as part of the administrative record, a January 9, 1992 letter written by Plaintiff to the

British Embassy acknowledging allegedly his inadvertent contact with the Irish Northern Aid

Committee in America (“NORAID”).3 See Administrative Record (“A.R.”) (Document No. 20)

at 4, Poett v. United States, Civ. Act. No. 07-1374. In that action, the FBI filed a “Notice of

FBI’s Final Decision” in which it advised that it “no longer reasonably suspects Plaintiff of

knowing involvement with an organization that engages in domestic or international terrorism or

with any other organization that engages in intentional crimes of violence.” Notice of FBI’s

Final Decision (Document No. 34) at 1, Poett v. United States, Civ. Act. No. 07-1374.

The court (Kollar-Kotelly, J.) Ultimately determined that:

Plaintiff’s purpose in filing the instant FOIA action – i.e., to be informed of the “date or date, time or times, place or places of his alleged involvement with said organization and a description of what acts he allegedly engaged in that made him suspect [as well as] the identity of the Organization Joseph Poett was allegedly involved with,” Complaint, Ex. 1 at 2 [have] been satisfied.

January 18, 2010 Minute Order (Document No. 22) at 2.

3 The administrative record in Poett v. United States, Civ. Act. No. 07-1374 was certified as “the true and correct copy of the Administrative Record regarding the denial of the application for Joseph Poett to have approval of access to select agents and toxins” by Dr. Robbin Weyant, the Director of the Division of Selected Agents and Toxins (“DSAT”). A.R. at 2-3, Poett v. United States, Civ. Act. No. 07-1374 (June 13, 2008)). The January 9, 1992 letter from Plaintiff to the British Embassy regarding his involvement with NORAID is included by Dr. Weyant as a part of this Administrative Record. Poett v. United States Dept. of Justice 4

CONTENTIONS OF THE PARTIES

Plaintiff contends that the release of the 1992 letter in the related action, Poett v. United

States, Civ. Act. No. 07-1374, constituted a “a voluntary or unilateral change in position by the

agency” since the Department of Justice had previously insisted that the letter was exempt from

disclosure. Plaintiff’s Memorandum of Law in Support of his Motion (“Plaintiff’s

Memorandum”) (Document No. 16) at 9-10. Furthermore, the cause of this change in position

was the initiation of this suit.

Plaintiff avers that he therefore has “substantially prevailed”

and is thus eligible for attorney’s fees and costs. See

(a)(4)(E)(i).

Additionally, Plaintiff asserts that he is entitled to attorney’s fees and costs because the

balance of the relevant factors runs in his favor. Plaintiff’s Memorandum at 12. Plaintiff avers

that this action helped the general public protect its ability “to keep watch to ensure their

cherished Constitutional Rights are not being lost to them.”

. Thereby, Plaintiff

contends that this FOIA action resulted in a public benefit and was a substantial claim.

at 10-

11. Moreover, according to Plaintiff, his “continued employment as a Chemist for USDA is

now secure,” and thus this action has granted him a commercial benefit.

. Plaintiff

then contends that his interest in obtaining the requested records “was to force the Agency to

obey the mandates of the FOIA.”

. By doing so, Plaintiff would “protect his property

interest . . . in his continued, unfettered employment with the USDA.”

. Finally,

Plaintiff states that “Defendant’s withholding of the Plaintiff’s 1992 letter to the British Embassy

and FBI documents generated in investigating Joseph Poett in 1992 were not backed by a

reasonable basis in law.”

. Poett v. United States Dept. of Justice 5

Defendant opposes the grant of attorney’s fees and costs on the grounds that Plaintiff is

not entitled to such fees.4 Defendant’s Opposition to Plaintiff’s Motion for Attorney’s Fees and

Costs of Suit (“Defendant’s Opposition”) (Document No. 25) at 5. First, Defendant asserts that

the disclosure of Plaintiff’s requested documents conferred no public benefit, because the

documents relate only to Plaintiff, and his stated purpose in requesting the documents was

personal.

. Defendant further argues that this allegedly personal interest precludes a grant

of fees in this case.

. Finally, Defendant avers that the Government’s position is

supported by a reasonable basis in law, because Plaintiff’s request was limited itself FBI

headquarters, and the letter which was of interest to Plaintiff was not located there.

.

Therefore, according to Defendant, the only reason why Plaintiff did not receive the document

was because he requested it from the wrong office.

.

APPLICABLE STANDARD

The Court’s determination of the appropriateness of attorney fees and costs under FOIA

is two-pronged. First, the Court must find that the plaintiff is eligible for attorney fees and costs.

If the Court finds that the plaintiff is indeed eligible, then the Court must determine that the

plaintiff is entitled to attorney fees and costs. Any award of fees, however, is subject to the

Court’s discretion. Barnard v. Dept. of Homeland Security,

(D.D.C.

2009) (citing Nationwide Bldg. Maint. v. Sampson, 559, F.2d 704, 705-6 (D.C. Cir. 1977)).

A. Eligibility5

4 At a hearing on May 27, 2010, Defendant through counsel, conceded that Plaintiff is eligibile for an award of attorney fees and costs.

5 See n. 4, supra. Poett v. United States Dept. of Justice 6

Eligibility for attorney fees and costs is predicated upon

(a)(4)(E), which

authorizes “reasonable attorney fees and other litigation costs reasonably incurred in any case

under this section in which the complainant has substantially prevailed.”

(a)(4)(E)(i). The section goes on to define the terms under which a complainant substantially

prevails as relief obtained either (1) through“a judicial order, or an enforceable written decree, or

consent decree,”

(a)(4)(E)(ii)(I); or (2) through a “voluntary or unilateral change in

position by the agency, if the claim is not insubstantial.”

(a)(4)(E)(ii)(II). Agency

disclosure of the requested documents would qualify as such a change in position. See N.Y.C.

Apparel F.Z.E. v. United States Customs & Border Prot. Bureau,

(D.D.C. 2008) (internal citation omitted) (“[A] plaintiff is deemed to have ‘substantially

prevailed’ for the purposes of § 552(a)(4)(E) if the litigation substantially caused the requested

records to be released.”).

If the agency does release the documents, a plaintiff must then demonstrate the existence

of a causal nexus between the bringing of a civil action and the release of the documents. See

Judicial Watch Inc. v. Bureau of Land Mgmt.,

(D.D.C. 2008) (quoting

Republic of New Afrika v. Federal Bureau of Investigation, 117, 118-19 (D.D.C. 1986)) (“The

causation inquiry is focused on whether ‘the prosecution of the action could reasonably be

regarded as necessary to obtain the information and that a causal nexus exists between the action

and the agency’s surrender of that information.’”). The court must look beyond the temporal

relationship between the filing of the complaint and the subsequent release of requested

documents. See Judicial Watch, Inc. v. Bureau of Land Mgmt.,

(D.D.C. 2008) (quoting Weisberg v. United States Dept. of Justice,

(D.C. Poett v. United States Dept. of Justice 7

Cir. 1984)) (“Though certainly a salient factor, ‘the mere filing of the complaint and the

subsequent release of the documents is insufficient to establish causation.’”). Conversely, “the

mere fact that a FOIA requester might have ultimately received the documents in question is not

a sufficient basis for finding that it has not substantially prevailed.” Fund for Constitutional

Government v. National Archives and Record Service,

(D.C. Cir 1981).

Additionally, a plaintiff’s simultaneous pursuit of a separate claim concerning the same

underlying facts as his FOIA claim poses a threat to the establishment of causation. See Simon v.

United States,

(D.D.C. 1984) (“In addition, because plaintiffs were

simultaneously pursuing non-FOIA claims concerning matters related to the information sought,

it is reasonable to infer that documents would have been produced in any case during the normal

course of discovery.”). Concurrent claims regarding the same underlying set of facts raise

uncertainty about which litigation substantially caused the document’s release. Mendez-Suarez v.

Veles,

(N.D. Ga. 1988).

B. Entitlement

In the determination of a litigant’s entitlement, the Court must consider four factors: (1)

the public benefit derived from the case; (2) the commercial benefit to the plaintiff; 3) the nature

of the plaintiff’s interest in the records and (4) whether the government has a reasonable basis for

withholding the requested information. Cotton v. Heyman,

(D.C. Cir. 1995).

No one factor alone is necessarily dispositive; however, “the court will not assess fees when the

agency has demonstrated that it had a lawful right to withhold disclosure.”6 Davy v. C.I.A., 550

6 The fourth factor can be dispositive if the government is correct as a matter of law. Davy, 550 F.3d at 1162. If the government’s position only has a colorable basis in law, then this factor will be weighed along with the other three in making the determination of entitlement. Id. Poett v. United States Dept. of Justice

(D.C. Cir. 2008) (citation omitted).

The public-benefit factor can be gauged by considering “whether plaintiff’s victory is

likely to add to the fund of information that citizens may use in making vital political choice.”

Cotton,

. The Court may also consider “the likely degree of dissemination and

the public benefit that can be expected from a particular disclosure.” Horsehead Indus. v. U.S.

E.P.A.,

(D.D.C. 1998).

The second and third factors, commercial benefit and plaintiff’s interest, are “closely

related and often considered together.” Tax Analysts v. United States Dept. of Justice,

(D.C. Cir. 1992). Because of the decidedly public aims of the FOIA statute, the

FOIA attorney fees provision “was designed to lower the . . . often insurmountable barriers

presented by court costs and attorney fees to the average person requesting information under the

FOIA.”

(quoting Cuneo v. Rumsfeld,

(D.C. Cir 1977)).

“Accordingly, when a litigant seeks disclosure for a commercial benefit or out of other personal

motives, an award of attorney fees is generally inappropriate.” Id; see also Fenster v. Brown,

(D.C. Cir. 1979) (“Section 552(a)(4)(E) was not intended to compensate FOIA

complainants who have a private commercial interest in disclosure which is sufficient incentive

to pursue their claim through the courts.”).

To satisfy the fourth requirement, a reasonable basis in law, the government “need only

have a ‘colorable basis in law’” for the court to consider it. Cotton,

(quoting

Chesapeake Bay Found. v. United States Dept. of Agric.,

(D.C. Cir. 1993); see

also Cuneo, 553 F.3d at 1366 (“What is required is a showing that the government had a

reasonable basis in law for [its position] and that it had been recalcitrant in its opposition or Poett v. United States Dept. of Justice 9

otherwise engaged in obdurate behavior.”).

If the balance of these four factors favors the Government, then the claim for attorney

fees is insubstantial. See Dasta v. Lappin,

(D.D.C. 2009) (linking

insubstantiality to a plaintiff with predominately personal interests in the requested information).

Determination of whether a claim is insubstantial is closely linked with the breadth of interests at

issue in the given case. See Sliney v. Federal Bureau of Prisons,

(D.D.C.

2009; see also Bureau of Land Mgmt.,

.

DISCUSSION

A. Eligibility

Historically, an inquiry into a plaintiff’s eligibility for fees under FOIA is “largely a

question of causation.” Weisberg v. United States Dept. of Justice,

(D.C.

Cir. 1984). The OPEN Government Act of 2007 (“OGA”) eliminated the requirement of judicial

imprimatur but left the causation requirement intact. See N.Y.C. Apparel F.Z.E.,

(internal citation omitted) (emphasis added) (explaining that the OGA “essentially codifies

the so-called ‘catalyst theory’ . . . under which a plaintiff is deemed to have ‘substantially

prevailed’ for the purposes of § 552(a)(4)(E) if the litigation substantially caused the requested

records to be released”); see also Bureau of Land Mgmt.,

(internal citation

omitted) (“The causation inquiry is focused on whether ‘the prosecution of the action could

reasonably be regarded as necessary to obtain the information and that a causal nexus exists

between the action and the agency’s surrender of that information.’”); see also Sliney,

(quoting Wildlands CPR v. United States Forest Serv., 558, F. Supp. 2d 1096, Poett v. United States Dept. of Justice 10

1098 (D. Mont. 2008)) (emphasis added) (“The catalyst theory assumes that a voluntary or

unilateral change in an agency’s position is induced by the complainant’s lawsuit.”).

Here, Defendant has conceded eligibility; the undersigned assumes, without deciding, that

Plaintiff is eligible for an award.7

B. Entitlement

Applying the four-factor test by which entitlement is evaluated, the undersigned finds that

Plaintiff is not entitled to attorney’s fees and costs. See Cotton,

(delineating the

four-factor test). The undersigned finds that weight of these four factors leans so heavily in favor

of Defendant that it is unnecessary to consider “applicable criteria from the older body of

equitable decisions on attorneys’ fees.” Blue v. Bureau of Prisons,

(5th Cir.

1978); cf. Nationwide Bldg. Maint., Inc., v. Sampson,

(D.C. Cir. 1977)

(emphasis added) (stating that

(a)(4)(E) “contemplates a reasoned exercise of the

courts’ discretion taking into account all relevant factors.”).

First, an agency’s demonstration of “a lawful right to withhold disclosure,” precludes the

Court from awarding attorney fees. Davy, 550 F.3d at1159. In the instant case, the two

declarations of David M. Hardy serve as such a demonstration. Plaintiff sent both of his FOIA

requests to FBI Headquarters. See Notice of Filing of Vaughn Index (Document No. 10-2) Ex. B

7 Simultaneous claims pose a significant threat to the establishment of causation. See Simon,

(“In addition, because plaintiffs were simultaneously pursuing non-FOIA claims concerning matters related to the information sought, it is reasonable to infer that documents would have been produced in any case during the normal course of discovery.”). In finding that the plaintiff had not substantially prevailed, the Mendez-Suarez court stated:

It is not clear from the record whether the requested information was released because of plaintiff’s FOIA requests or because of discovery requests made pursuant to Rule 34 of the Federal Rules of Civil Procedure . . . In any event, the pendency of the discovery requests conclusively demonstrates that the information sought was available through means other than the filing of a FOIA claim.

Id. at 907. Poett v. United States Dept. of Justice 11

at 1; see also Second Declaration of David M. Hardy (“Second Decl. of David M. Hardy”)

(Document No. 17-1) at ¶ 3. “For records held by a field office of the Federal Bureau of

Investigation, . . . you must write directly to that FBI . . . field office address.”

(a).8 The Second Declaration of David M. Hardy specifically states that “[t]he January 9,

1992, letter written to the British Ambassador by Plaintiff and potentially other documents

pertaining to Plaintiff, are located at other FBI Field Offices.” Second Decl. of David M. Hardy

at ¶ 9. Furthermore, the First Declaration of David M. Hardy describes in reasonable detail, the

organization of the FBI’s Central Record Service, and the particular search methods applied to

Plaintiff’s request. First Declaration of David M. Hardy (“First Decl. of David M. Hardy”)

(Document No. 10-1) at ¶¶ 13-18; 19-20. The declarations are relatively detailed and non-

conclusory, and therefore without evidence to the contrary, they are afforded a presumption of

good faith. See Perry v. Block,

(D.C. Cir. 1982); see also Safecard Services,

Inc. v. S.E.C.,

(D.C. Cir. 1991). Plaintiff has not provided “‘specific facts’

demonstrating that there is a genuine issue with respect to whether the agency has improperly

withheld extant agency records.” Span v. United States Dept. of Justice,

(D.D.C., March 22, 2010) (quoting Dept. of Justice v. Tax Analysts,

(1989).

Furthermore, Plaintiff does not persuade the court that any of the other factors warrant a

finding that he is entitled to an award of fees and costs. Regarding the public benefit factor, the

8 In her response to Plaintiff’s Appeal of the FBI’s decision to withhold documents, Associate Director Janice Gallie McLeod alerted Plaintiff of the potential existence of responsive documents at the St. Louis Field Office of the FBI. Notice of Filing of Vaughn Index Ex. F at 2. The record does not indicate that Plaintiff actually filed a FOIA request with the St. Louis Field Office or any other local Field Office. Poett v. United States Dept. of Justice 12

court cannot conclude that information consisting of “all documents and information . . . utilized

by [FBI] in reaching the Decision to deny Joseph Poett access to select agents and toxins as set

forth herein,” Compl. Ex. A at 1, is likely to add to the fund of public information or result in

considerable public dissemination or benefit. See Cotton, 63, F.3d at 1120; see also Horsehead

Indus. v. United States Environmental Protection Agency,

(D.D.C. 1998).

Conversely, it seems more likely that the disclosed information only benefits Plaintiff, thereby

negating the public-benefit factor. See Maydak v. United States Dept. of Justice,

(D.D.C. 2008) (finding that the public-benefit factor can be negated if a court finds that

“the plaintiff is the only beneficiary of the released records”).

This becomes even clearer upon considering that throughout the record, Plaintiff states

that his immediate goal in obtaining the 1992 letter was to “ascertain the identity of the

organization he was allegedly involved with, the acts he allegedly took, and the dates and times

of the alleged actions he took.” Compl. ¶ 9. Moreover, as stated in the June 21, 2007 request,

Plaintiff states that his ultimate goal was to “defend himself against the charge of knowing

involvement with an organization that engages in intentional acts of violence.” Compl. Ex. 1 at

2. Each of these stated goals is entirely personal in nature, and Plaintiff identified them as such

in his October 30, 2007 FOIA Appeal. Notice of Filing of Vaughn Index Ex. D at 4 (“Nor is it

Joseph Poett’s intention to disseminate any information obtained. Rather it is his intent to

disprove the allegations lodged against him to protect himself and his family.”).

Plaintiff’s goals do not appear to be commercial, and for that reason he does not

automatically fail to satisfy the commercial benefit factor; however, the lack of a public benefit

inherently illuminates the fact that Plaintiff’s relationship to the disclosed document is of a Poett v. United States Dept. of Justice 13

private and personal nature. For that reason, Plaintiff fails to satisfy the third factor. “When a

litigant seeks disclosure for a commercial benefit or other personal reasons, an award of fees is

usually inappropriate.” Cotton,

. Furthermore, a litigant’s interest does not have

to be strictly commercial to preclude the necessity of fees. Tax Analysts,

. As

stated in the complaint, Poett’s goal in obtaining the requested documentation was to “defend

himself against the charge of knowing involvement with an organization that engages in

intentional acts of violence . . .” Compl., Ex. A at 1. As such, not only does the disclosure of

Poett’s requested documents fail to provide a public benefit, but it also serves a purely private

and personal goal, thereby negating the third prong of the entitlement test.

CONCLUSION

For all the foregoing reasons, the undersigned finds that Plaintiff has failed to

demonstrate, in accordance with the applicable standards, that he is entitled to an award of

attorney’s fees and costs. It is therefore, this 30th day of September, 2010,

ORDERED that Plaintiff’s Motion for Attorney’s Fees and Costs of Suit (Document No.

23) is DENIED.

/s/ DEBORAH A. ROBINSON United States Magistrate Judge