UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN WILD HORSE CAMPAIGN,

Plaintiff,

v. Case No. 22-cv-3061 (CRC)

UNITED STATES BUREAU OF LAND MANAGEMENT,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff American Wild Horse Campaign (“AWHC”) submitted a Freedom of

Information Act (“FOIA”) request to the United States Bureau of Land Management seeking

information about its handling of an AWHC report on the purported inhumane treatment of

animals in the Bureau’s care. The Bureau acknowledged receipt of AWHC’s request and

provided a tracking number on the same day. Over the next several months, AWHC sent the

Bureau five requests for an estimated date of completion. Hearing no response, AWHC filed suit

eight months after filing its request. Three months later, prior to any action by this Court, the

Bureau released 32 pages of responsive records. Six months after that, the Bureau supplemented

its initial submission with two additional pages following an additional search.

AWHC now moves for attorney’s fees and costs under FOIA’s fees provision, which

provides that “[t]he court may assess against the United States 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). Because AWHC is neither eligible for nor

entitled to fees and costs, the Court will deny its motion. I. Background

AWHC is a nonprofit organization “committed to advocating for federally protected wild

horses and burros.” Pl.’s Fee Mot. 5. As part of that mission, AWHC seeks to “to expose abuse,

fraud, and waste within federal programs affecting wild horses and burros.”

Attachment 3

(“Perrin Decl.”) ¶ 6. One such program is the Trainer Incentive Program (“TIP”), which was

“created by the Mustang Heritage Foundation (“MHF”), in partnership with the BLM, with the

purpose of training and finding homes for wild horses and burros.” Perrin Decl. ¶ 38. AWHC

has been investigating the alleged abuse of wild horses and burros by TIP trainers, including the

export of animals for slaughter.

¶ ¶ 38–39. Through records released in response to prior

FOIA requests, AWHC claims to have discovered that animals in the Bureau’s care “routine[ly]”

end up in the slaughter pipeline.

. At the conclusion of its investigation, AWHC sent a

report to the Bureau and MHF presenting “evidence related to two TIP trainers’ inhumane

treatment and neglect of TIP animals in their care, as well as the trainers selling horses to

slaughter.”

. The report urged the Bureau to investigate and correct the alleged abuses.

AWHC was not satisfied with the Bureau’s response, which it says “did not acknowledge

the issues identified in the report.”

. So, AWHC decided to “find out how the report was

handled by the agency.”

To that end, on February 10, 2022, AWHC filed a FOIA request with the Bureau seeking

communication records concerning the subject TIP trainers between Bureau employees and the

MHF. Compl., Ex. 1 at 1–2; see Opp’n, Ex. A (“Witt Decl.”) ¶ 5. AWHC requested records

beginning January 1, 2021, through the processing date of the request.

The Bureau promptly

2 confirmed receipt and assigned the request a tracking number. 1 Perrin Decl. ¶ 17; Compl., Ex. 3

at 1. Two weeks later, AWHC narrowed the scope of the request to cover only “emails,

including attachments” from January 1, 2021 through January 1, 2022. Perrin Decl. ¶¶ 12–14;

Compl., Ex. 2 at 1; Witt Decl. ¶ 7. AWHC never received confirmation of its narrowed request.

Perrin Decl. ¶ 18; see Witt Decl. ¶ 8.

Over the next seven months, AWHC sent five emails to the Bureau requesting an

estimated completion date. Perrin Decl. ¶ 19. The Bureau did not respond.

While the

Bureau’s online FOIA portal listed “an estimated completion date of ‘7/1/2022,’” that date

“came and went without further response from [the Bureau].”

¶¶ 20–21. After a total of

approximately eight months without a response, AWHC filed the present action in October 2022.

. In January 2023, the Bureau released 32 pages of responsive records.

; Witt

Decl. ¶ 9; Opp’n, Ex. B (“McGuire Decl.”) ¶ 6. Six months later, after conducting an additional

search, the Bureau produced one supplemental responsive email. Perrin Decl. ¶ 36; Witt Decl.

¶ 10.

AWHC now seeks attorney’s fees and costs. AWHC initially sought $33,725.19, Pl.’s

Fee Mot. 25–26, and then increased its ask to $52,889.69, Pl.’s Reply 2. For the reasons that

follow, the Court will deny AWHC’s motion.

II. Legal Standard

Courts “may assess against the United States reasonable attorney fees and other litigation

costs reasonably incurred” in any FOIA case where “the complainant has substantially

1 AWHC claims it received a confirmation email with a tracking number on March 14, 2022. Perrin Decl. ¶ 17. The Bureau maintains that it “acknowledged Plaintiff’s FOIA request on February 10, 2022.” Witt Decl. ¶ 6. The email attached as Exhibit 3 to AWHC’s complaint is dated February 10, 2022 with a forwarding date of March 14, 2022. Compl., Ex. 3 at 1. The Court will therefore treat the February date as date of confirmation. 3 prevailed.”

(a)(4)(E)(i). To recover fees and costs, a FOIA plaintiff must be both

(1) eligible for and (2) entitled to such an award. See Brayton v. Off. of the U.S. Trade

Representative,

(D.C. Cir. 2011). Even if a complainant successfully receives

documents, “[t]here is no presumption in favor of awarding fees” and “the court has ‘broad

discretion’ when considering whether to grant an award of attorney’s fees.” Env’t Integrity

Project v. EPA,

(D.D.C. 2018) (citing Hall & Assocs. v. EPA,

(D.D.C. 2016)).

A FOIA plaintiff is eligible for fees if it “substantially prevailed.”

(a)(4)(E)(i). A plaintiff substantially prevails either by obtaining relief through a judicial

order or by showing that its suit caused “a voluntary or unilateral change in position by the

agency,” resulting in the release of documents.

(a)(4)(E)(ii); see Grand Canyon

Tr. v. Bernhardt, (“Grand Canyon I”),

(D.C. Cir. 2020) (per curiam).

If the plaintiff is eligible for a fee award, the court proceeds to the entitlement inquiry.

Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec. (“EPIC II”),

(D.D.C. 2013) (quoting Brayton,

). Courts consider four factors to decide

whether a plaintiff is entitled to fees: “(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)

the reasonableness of the agency’s withholding of the requested documents.” Kwoka v. IRS,

(D.C. Cir. 2021) (citation omitted). “In applying this test, ‘[n]o one factor is

dispositive.’” EPIC II,

(alteration in original) (quoting Davy v. CIA,

(D.C. Cir. 2008)). The balancing of these factors is left to the discretion of the

district court. Morley v. CIA,

(D.C. Cir. 2018) (per curiam).

4 III. Analysis

A. Eligibility

A plaintiff is eligible for fees if it obtains relief through a judicial order or if it

demonstrates that its suit caused “a voluntary or unilateral change in position by the agency,”

resulting in the release of documents.

(a)(4)(E)(ii); see Grand Canyon I,

. Here, the Court never ordered relief to AWHC. So AWHC seeks to demonstrate

eligibility based on the “catalyst theory,” which considers whether the lawsuit “caused a change

in the agency’s position regarding the production of requested documents.” Grand Canyon I,

. The Court concludes that AWHC has not met its burden to show that “it is more

probable than not that the government would not have” released the requested documents

“absent the lawsuit.”

(citation omitted).

AWHC relies on only two pieces of evidence to establish that its lawsuit caused the

Bureau to release the requested documents: (1) the delay between AWHC’s request and the

Bureau’s release of documents; and (2) the Bureau’s failure to communicate with AWHC during

that period. Neither can overcome the Bureau’s representations that it “generally processes

FOIA requests in the order they are received,” “intended to process [AWHC]’s FOIA request” in

that order, and never denied AWHC’s request. Witt Decl. ¶ ¶ 14–16. The Court must presume

those representations “were made in good faith.” Zynovieva v. U.S. Dep’t of State, No. 19-CV-

3445,

, at *5 (D.D.C. Mar. 31, 2023), aff’d, No. 23-5120,

(D.C. Cir. Apr. 30, 2024). The Court thus has “good reason to believe” that the Bureau would

have released the records in question when it finished processing AWHC’s request, even if

AWHC had never filed suit.

5 True, a significant delay by an agency in complying with FOIA “may provide the

‘inference that the agency forgot about, or sought to ignore, a FOIA requester’s request.’” Elec.

Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec. (“EPIC III”),

(D.D.C.

2016) (citation omitted). And the Bureau’s delay in processing AWHC’s request was

considerable. AWHC filed its request on February 10, 2022. Compl., Ex. 1 at 1–2; see Witt

Decl. ¶ 5. The Bureau did not release the first set of records until January 27, 2023—351 days

later. Witt Decl. ¶ 9. That is significantly longer than the timeline dictated by FOIA.

(a)(6)(A)(i); see Pl.’s Fee Mot. 14.

But “some amount of delay in excess of the statutory limit is, regrettably, a common

feature of the FOIA process.” Zynovieva,

, at *6. And the Bureau represents

that the “request remained in [the Bureau’s] processing queue for several months” “[d]ue to [the

Bureau’s] extensive FOIA backlog.” Witt Decl. ¶ 8. The Bureau further indicates that its

backlog has been extensive over the past years.

. At the end of 2022, the year AWHC

made its request, the Bureau had 1,427 backlogged requests. 2

A processing period of just

under a year does not strike the Court as out of the ordinary given this large backlog. The mere

fact of the delay is thus consistent with the Bureau’s explanation for it, and AWHC has not

provided other evidence sufficient to counter the Bureau’s presumptively good-faith

representations.

Nor was there a “sudden acceleration” in the Bureau’s processing after AWHC filed suit

that might “lead a court to conclude that . . . the filing of the lawsuit was the real reason for that

acceleration.” Terris, Pravlik & Millian, LLP v. Centers for Medicare & Medicaid Servs.,

If the next year’s statistics are any indication, AWHC and its members may very well have contributed to some of that backlog, having lodged 75 of the FOIA requests pending before the Bureau’s headquarters office in November 2023. Witt Decl. ¶ 12. 6 Supp. 2d 29, 38 (D.D.C. 2011). The Bureau did not release the requested records until three

months after AWHC filed suit. Perrin Decl. ¶ ¶ 31, 34. It therefore “seems more likely, in fact,

that the documents would have been processed in the same manner, with the same result,

regardless of whether litigation was filed.” Zynovieva,

, at *6 (quoting WP

Co. LLC v. U.S. Dep’t of State,

, 17 (D.D.C. 2020)).

AWHC also relies on the Bureau’s failure to communicate about the status of the request

while it was pending. As noted, the Bureau did not respond to AWHC’s five requests for an

estimated completion date or communicate at all beyond its initial acknowledgment of the

request until AWHC brought this lawsuit eight months later. Perrin Decl. ¶ ¶ 24–25. The Court

agrees that the Bureau should have done more to apprise AWHC of the status of its request and

explain the reason for the delay. Indeed, in other cases concluding that a plaintiff is ineligible for

fees, “the agencies typically provided more explanation for the delay” than the Bureau did here.

Zynovieva,

, at *6; see, e.g., WP Company LLC, 506 F. Supp. 3d at 16–17.

But the Bureau’s failure to communicate, while regrettable, does not alone overcome its

assurances that it intended to process AWHC’s request in the order received and experienced

delays due to backlog. Witt Decl. ¶ ¶ 8, 14–16. At the eligibility stage, “it is [AWHC’s] burden

to show that it is more likely than not that [its] litigation caused the release of documents, not

[the Bureau’s] burden to prove otherwise.” Zynovieva,

, at *7. AWHC has

not met that burden here. 3

3 AWHC also points to the Bureau’s release of an additional responsive record “after further dialogue between the parties” and a supplemental search as support for its catalyst theory. Perrin Decl. ¶ 35; Pl.’s Reply 6. But as the Bureau notes, AWHC likely could have obtained the additional document through an ordinary administrative channel absent litigation, such as an agency appeal. Opp’n 3. 7 B. Entitlement

Even if AWHC were eligible for fees and costs, the Court would find that it is not entitled

to them. A FOIA litigant’s entitlement to fees is governed by “four rather amorphous factors: (i)

the public benefit from the case; (ii) the commercial benefit to the plaintiff; (iii) the nature of the

plaintiff’s interest in the records; and (iv) the reasonableness of the agency’s withholding of the

requested documents.” Morley,

.

The first factor asks whether “the complainant’s victory is likely to add to the fund of

information that citizens may use in making vital political choices.” Cotton v. Heyman,

(D.C. Cir. 1995). The Court cannot discern any public benefit to the documents

AWHC obtained through its FOIA request. The only document AWHC received that was not

already in its possession appears to be an email from one Bureau staff member to a TIP manager

and MHF director “requesting that they call me to discuss the report and coordinate a response.”

McGuire Decl. ¶ 9. The remainder of the records obtained by Plaintiff include its own publicly

available report, the Bureau’s response to the report (which Plaintiff already had), and a copy of

that response forwarded to Bureau staff and legal counsel.

¶ ¶ 7–15; see id. ¶ 16 (detailing

that the produced emails discussed the “receipt of” and “response to the report”). Notably, the

released records did not shed any additional light on AWHC’s allegations of animal

mistreatment. Id. (indicating that the records did not “reveal anything about the underlying

allegations contained in Plaintiff’s report” or the Bureau’s investigation). The Court thus

concludes that the largely administrative emails AWHC received do not “benefit[] the public by

increasing its knowledge of its government.” Cotton,

.

“The second and third entitlement factors, considered together, address whether the

plaintiff had a ‘sufficient private incentive’ to pursue his FOIA request even without the prospect

8 of obtaining attorneys’ fees.” McKinley v. Fed. Hous. Fin. Agency,

(D.C.

Cir. 2014) (citation omitted). AWHC is a non-profit organization that does not benefit

commercially from obtaining the records in question, so these factors favor it. See Elec. Privacy

Info. Ctr. v. U.S. Dep’t of Homeland Sec. (“EPIC I”),

(D.D.C. 2011)

(explaining that “[f]ee recovery is often appropriate [] when the plaintiff is a nonprofit public

interest group”). The Bureau does not argue otherwise. See Opp’n 12.

Lastly, the test for reasonableness requires consideration of (1) the appearance of a

reasonable basis under law and (2) whether the agency was recalcitrant or obdurate. McKinley,

. As just explained, AWHC has given the Court no reason to doubt the Bureau’s

explanation for its delay in releasing the requested records. See Witt Decl. ¶ 8. Even if the

Bureau’s backlog of requests does not go so far as to supply a reasonable basis for withholding

the records, the Bureau’s representations certainly do not reflect recalcitrance or obduracy. The

fourth factor weighs in favor of the Bureau.

The Court concludes that the balance of the factors weighs against AWHC. Although

AWHC instituted the litigation to serve the public, the documents it obtained provided no public

benefit and the Bureau has, at most, “acted more slowly than it should have.” Zynovieva,

, at *8. Accordingly, even if the Court had found that AWHC was eligible for fees

and costs, it would decline to award them.

IV. Conclusion

For these reasons, it is hereby

ORDERED that [Dkt. No. 16] Plaintiff’s Motion for Attorney’s Fees and Costs is

DENIED.

SO ORDERED.

9 This is a final appealable Order.

CHRISTOPHER R. COOPER United States District Judge

Date: August 26, 2024

10