UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) INFORMED CONSENT ACTION ) NETWORK, ) ) Plaintiff, ) v. ) Civil Action No. 23-3674 (RBW) ) NATIONAL INSTITUTES OF HEALTH, ) et al., ) ) Defendants. ) ) ) INFORMED CONSENT ACTION ) NETWORK, ) ) Plaintiff, ) v. ) Civil Action No. 24-813 (RBW) ) NATIONAL INSTITUTES OF HEALTH, ) et al., ) ) Defendants. ) )

MEMORANDUM OPINION

The plaintiff, Informed Consent Action Network, brought this Freedom of Information

Act (“FOIA”) action against the defendants, the National Institutes of Health (“NIH”) and the

United States Department of Health and Human Services (“HHS”), arising out of its FOIA

requests for emails regarding the article titled “Antibodies to SARS-CoV-2 in All Of Us

Research Program Participants, January 2-March 18, 2020.” See Informed Action Consent

Network v. Nat’l Insts. of Health, No. 23-cv-3674, Complaint (“ICAN I Compl.”) at 1, ECF

No. 1; Informed Action Consent Network v. Nat’l Insts. of Health, No. 24-cv-813, Complaint

(“ICAN II Compl”) at 1, ECF No. 1. Currently pending before the Court is the Plaintiff’s Motion for Attorneys’ Fees and Costs (“Pl.’s Mot.”), ECF No. 23. Upon careful consideration of

the parties’ submissions, 1 the Court concludes for the reasons below that it must deny the

plaintiff’s motion for attorneys’ fees.

I. BACKGROUND

A. Factual Background

1. FOIA Request 56560

On June 17, 2021, the plaintiff submitted a FOIA request to NIH requesting:

All emails exchanged between Keri N. Althoff and David Schlueter dated between June 15, 2020[,] and June 15, 2021[,] regarding the article titled Antibodies to SARS-CoV2 in All Of Us Research Program Participants, January 2-March 18, 2020.

ICAN I Compl. ¶ 6 (citation omitted). That same day, NIH acknowledged receipt of the request

and “assigned it Case Number 56560.” Id. ¶ 7.

Subsequently, “[o]n May 26, 2022, [d]efendant HHS notified [the p]laintiff that its

request was referred from NIH to the National Human Genome Research Institute (“NHGRI”)

within [ ] NIH.” Id. ¶ 8. “On August 5, 2022, [the p]laintiff requested an estimated date of

completion” for the processing of its FOIA request, id. ¶ 9, and “[o]n August 10, 2022, NIH

responded to [the p]laintiff’s request for an estimated date[] of completion stating, ‘Given a

review of the records, I am providing a date of September 21, 2022[,] as the estimate[d] date of

completion[,]” id. ¶ 10. Then, “[o]n September 23, 2022, NIH contacted [the p]laintiff and

advised it was extending its estimated date of completion to November 30, 2022.” Id. ¶ 11.

Having been provided no further update by the defendants on their progress in processing its

1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Memorandum in Support of Plaintiff’s Motion for Attorneys’ Fees and Costs (“Pl.’s Mem.”), ECF No. 23-1; (2) the defendants’ Opposition to Motion for Attorneys’ Fees (“Defs.’ Opp’n”), ECF No. 24; (3) the Declaration of Gorka Garcia-Malene (“Garcia-Malene Decl.”), ECF No. 24-1; and (4) the Plaintiff’s Reply Memorandum in Further Support of Motion for Attorneys’ Fees and Costs (“Pl.’s Reply”), ECF No. 25.

2 request, on December 10, 2023, the plaintiff filed its Complaint in case number 23-3674 on

December 10, 2023. See id. at 1.

2. FOIA Request 56559

Also on June 17, 2021, the plaintiff submitted a separatee FOIA request to NIH

requesting:

All emails exchanged between Keri N. Althoff, Kelly A. Gebo, and Sheri D. Schully dated between June 15, 2020[,] and June 15, 2021[,] regarding the article titled Antibodies to SARS-CoV2 in All Of Us Research Program Participants, January 2-March 18, 2020.

ICAN II Compl. ¶ 6. That same day, NIH acknowledged receipt of the request and “assigned it

Case Number 56559.” Id. ¶ 7. The defendants provided no further updates to the plaintiff

regarding the processing of this request, see id. ¶ 8, nor did the plaintiff inquire as to the

expected completion date of the defendants’ processing of FOIA Request 56559, as it did with

FOIA Request 56560, see generally ICAN II Compl. On March 20, 2024, the plaintiff filed its

Complaint in case number 24-813. See id. at 1.

B. Procedural Background

As indicated above, the plaintiff filed its Complaints in ICAN I and ICAN II on

December 10, 2023, and March 20, 2024, respectively. See ICAN I Compl. at 1; ICAN II

Compl. at 1. On June 17, 2024, the Court granted the parties’ joint motion to consolidate ICAN I

and ICAN II. See Order at 1 (June 17, 2024), ECF No. 16. 2

On August 9, 2024, the parties represented that “NIH ha[d] completed its search for

responsive records related to both [FOIA] requests[,]” and had identified 813 pages of potentially

responsive records. See Joint Status Report at 2 (Aug. 9, 2024), ECF No. 17. NIH then

2 Pursuant to the Court’s June 17, 2024, Order, the parties were instructed to file all submissions in both cases in ICAN I. See id. at 2. Thus, all references in this Memorandum Opinion to submissions filed by the parties after June 17, 2024, are to submissions filed in ICAN I.

3 “completed the processing of its first interim release on October 1, 2024, and completed the

processing of its second interim release in November 2024.” Joint Status Report at 2 (Dec. 17,

2024), ECF No. 19.

On April 18, 2025, the parties represented that the “[p]laintiff ha[d] reviewed the records

produced and the only remaining issue is that of attorney[s’] fees,” and requested time to

negotiate a resolution of that issue without the Court’s involvement. Joint Status Report at 2

(Apr. 18, 2025), ECF No. 21. However, on June 18, 2025, the parties advised the Court that they

had been unable to resolve the issue of fees, see Joint Status Report at 1 (June 18, 2025), ECF

No. 22, and thus, the Court set a briefing schedule for the parties to make submissions regarding

the plaintiff’s request for an award of attorneys’ fees, see Minute (“Min.”) Order (June 26,

2025). In accordance with the Court’s briefing schedule, the plaintiff filed its motion for

attorneys’ fees on July 24, 2025. See Pl.’s Mot. at 1. On August 21, 2025, the defendants filed

their opposition to the plaintiff’s motion, see Defs.’ Opp’n at 1, and on September 11, 2025, the

plaintiff filed its reply in support of its motion for an award of attorneys’ fees, see Pl.’s Reply

at 1.

II. STANDARD OF REVIEW

A. Motion for Attorneys’ Fees

The FOIA provides that courts “may assess against the United States reasonable attorney

fees and other litigation costs reasonably incurred in any case . . . in which the [plaintiff] has

substantially prevailed.”

(a)(4)(E)(i). “This language naturally divides the

attorney-fee inquiry into two prongs, which [District of Columbia Circuit] case law has long

described as fee ‘eligibility’ and fee ‘entitlement.’” Brayton v. Off. of the U.S. Trade

Representative,

(D.C. Cir. 2011) (quoting Judicial Watch, Inc. v. U.S. Dep’t

4 of Com.,

, 368–69 (D.C. Cir. 2006)). “The eligibility prong asks whether a plaintiff

has ‘substantially prevailed’ and thus ‘may’ receive fees.”

(quoting Judicial Watch,

). “If so, the court proceeds to the entitlement prong and considers a variety of factors to

determine whether the plaintiff should receive fees.”

“Finally, ‘[a] plaintiff who has proven

both eligibility for and entitlement to fees must submit his [or her] fee bill to the court for [the

court’s] scrutiny of the reasonableness of (a) the number of hours expended and (b) the hourly

fee claimed.’” Judicial Watch,

(quoting Long v. Internal Revenue Serv.,

, 1313–14 (9th Cir. 1991)).

III. ANALYSIS

A. Whether the Plaintiff Is Eligible for an Award of Attorneys’ Fees

As already noted, to be “eligible” for attorneys’ fees, a FOIA plaintiff must have

“substantially prevailed.” Brayton,

. “[A] complainant has substantially

prevailed if the complainant has obtained relief through either—(I) a judicial order, or an

enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in

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

(a)(4)(E)(ii). Because the defendants disclosed the responsive records without the Court

ordering them to do so, the plaintiff relies on the latter of the two provisions—subsection (II) of

§ 552(a)(4)(E)(ii)—as the basis for its fee request. See Pl.’s Mem. at 17.

This provision codifies the so-called “catalyst theory” of fee eligibility, pursuant to which

a FOIA plaintiff “can prove fee eligibility by showing that its lawsuit ‘substantially caused the

government to release the requested documents before final judgment.’” Grand Canyon Tr. v.

5 Bernhardt,

(D.C. Cir. 2020) (quoting Brayton, 641 F.3d at 524–25). 3 At bottom,

the Court’s inquiry pursuant to the catalyst theory is whether the “institution and prosecution of

the litigation cause[d] the agency to release the documents obtained during the pendency of the

litigation[.]” Church of Scientology of Cal. v. Harris,

(D.C. Cir. 1981). A

“plaintiff has the burden of showing ‘that it is more probable than not that the government would

not have performed the desired act [i.e., production to the plaintiff of the responsive records]

absent the lawsuit.’”

(quoting Pub. Citizen Health Rsch. Grp. v. Young,

(D.C. Cir. 1990)). And, the D.C. Circuit has “repeatedly held that whether a plaintiff’s suit

caused the production of documents ‘is, of course, a question of fact entrusted to the District

Court and the appellate court is to review that decision under a clearly-erroneous standard.’”

Grand Canyon Tr.,

(quoting Weisberg v. Dep’t of Just.,

(D.C. Cir. 1984)).

In assessing whether the plaintiff has met its burden, courts must consider the totality of

the circumstances relating to the agency’s disclosure. See Grand Canyon Tr. v. Zinke,

(D.D.C. 2018), aff’d,

(D.C. Cir. 2020). “Although ‘the mere

filing of the complaint and the subsequent release of the documents is insufficient to establish

causation,’” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec.,

(D.D.C. 2011) (quoting Weisberg,

), “it is nonetheless a “‘salient factor’ in the

3 The plaintiff argues at length in its motion for attorneys’ fees that the District of Columbia Circuit erred in concluding that the 2007 Open Government Act revived the catalyst theory rejected by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources,

(2001). See Pl.’s Mem. at 5–8. Despite the plaintiff’s position, it conflicts with binding D.C. Circuit precedent holding that the 2007 Open Government Act established “that the catalyst theory applie[s] in FOIA cases.” Davis v. U.S. Dep’t of Just.,

(D.C. Cir. 2010); accord Brayton,

(“Congress passed the OPEN Government Act of 2007 . . . [to] abrogate[] the rule of Buckhannon in the FOIA context and revive[] the possibility of FOIA fee awards in the absence of a court decree . . . . The purpose and effect of this law, which remains in effect today, was to change the ‘eligibility’ prong back to its pre-Buckhannon form.”). Thus, the Court must consider the applicability of the catalyst theory in determining whether the plaintiff is eligible for an award of attorneys’ fees.

6 analysis,”

(Jud. Watch, Inc. v. U.S. Dep’t of Homeland Sec., No. 08-cv-2133 (EGS/DAR),

, at *3 (D.D.C. June 15, 2009)); accord Pub. Law Educ. Inst. v. Dep’t of Just.,

, 184 n.5 (D.C. Cir. 1984) (“While the temporal relation between a[] FOIA action

and the release of documents may be taken into account in determining the existence vel non of a

causal nexus, timing, in itself or in conjunction with any other particular factor, does not

establish causation as a matter of law.”). And, “an agency’s ‘sudden acceleration’ in processing

a FOIA request may lead to the conclusion that the lawsuit substantially caused the agency’s

compliance with [the] FOIA.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec. (“EPIC

II”),

(D.D.C. 2016) (quoting Terris, Pravlik & Millian, LLP v. Ctrs. for

Medicare & Medicaid Servs.,

(D.D.C. 2011)). 4

On the other hand, “[t]he causation requirement is missing when disclosure results not

from the suit but from delayed administrative processing.” Short v. U.S. Army Corps of Eng’rs,

(D.D.C. 2009); see also Church of Scientology of Cal.,

(quoting Cox v. U.S. Dep’t of Just.,

(D.C. Cir. 1979) (“If . . . an unavoidable delay

accompanied by due diligence in the administrative processes was the actual reason for the

agency’s failure to respond to a request, then it cannot be said that the complainant substantially

prevailed in [its] suit.”)). That is because “Congress did not enact the fee-shifting provision of

[the] FOIA to punish agencies for their slowness in processing FOIA requests, but to reward

plaintiffs whose filing of lawsuits alters the government’s slowness and brings about disclosure.”

Terris, Pravlik & Millian, LLP,

.

4 The District of Columbia Circuit has declined to decide “whether a ‘sudden acceleration’ of production can, of itself, represent a ‘change in position’ within the meaning of” the FOIA, as amended by the OPEN Government Act of 2007. Grand Canyon Tr., 947 F.3d at 97–98. Thus, the Court will assess both whether NIH changed its position regarding responding to the plaintiff’s FOIA requests as a result of this litigation, and whether NIH otherwise accelerated its processing in response to this litigation.

7 Here, the plaintiff argues that its initiation of the two lawsuits in in this consolidated case

undoubtedly caused the defendants to process the responsive records because the defendants took

no further action to produce the responsive records between the dates the defendants

acknowledged receipt of the plaintiff’s FOIA requests and the plaintiff’s initiation of the lawsuits

following those requests. See Pl.’s Mem. at 22. And, according to the plaintiff, because the

defendants “voluntarily changed their position” and processed the responsive documents within

four months of this Court granting the parties’ motion to consolidate the two cases, the plaintiff

is eligible for an award of attorneys’ fees. Id. at 23.

In response, the defendants represent that although NIH did not produce any responsive

records until after the plaintiff filed their two cases, the delay in processing the plaintiff’s FOIA

requests was actually caused by the COVID-19 pandemic, which “triggered a dramatic surge in

FOIA requests and an increase in the backlog at NIH.” Defs.’ Opp’n at 8 (quoting id., Exhibit

(“Ex.”) 1 (Declaration of Gorka Garcia-Malene (“Garcia-Malene Decl.”)) ¶ 9, ECF No. 24-1).

In support of their position, the defendants provided the detailed declaration of Gorka Garcia-

Malene, an NIH FOIA Officer, which the Court “accord[s] a presumption of good faith[.]”

SafeCard Servs., Inc. v. Sec. & Exch. Comm’n,

(D.C. Cir. 1991). The

Garcia-Malene Declaration details that the COVID-19 pandemic had a “profound impact” on

NIH’s FOIA program, Garcia-Malene Decl. ¶ 9, “given [NIH’s] central role in the pandemic

response[,]” id., ¶ 11, and that “in the first three [ ] years after the 2020 [COVID-19] outbreak,

NIH received 6,226 FOIA requests[,]” compared to a total of 4,347 requests received in the three

year period prior to the COVID-19 pandemic, id. ¶ 9. According to the Garcia-Malene

Declaration, “[s]ince January 1, 2020, NIH has received a total of 10,999 FOIA requests and has

8 successfully closed 10,010 of them—an extraordinary effort in the face of sustained, high

demand.” Id. ¶ 11.

In addition to the sheer volume of requests, the Garcia-Malene Declaration makes clear

that the breadth and complexity of the FOIA requests submitted, as well as the need to consult

other agencies, has complicated NIH’s responsiveness to FOIA requests, thereby delaying the

timelines by which they are able to process FOIA requests. See id. ¶¶ 13–14. The Garcia-

Malene Declaration further represents that although NIH has sought to mitigate these delays by

working to streamline its processing procedures and systems, “such changes could not eliminate

delays altogether.” Id. ¶ 15.

Indeed, the Garcia-Malene Declaration notes that the “[p]laintiff itself has contributed to

the rising volume of FOIA requests submitted to NIH.” Id. ¶ 21. According to the Garcia-

Malene Declaration, “[p]rior to 2020, [the p]laintiff had submitted only four [] FOIA requests to

NIH[,]” but submitted 27 in 2020, 32 in 2021, 48 in 2022, 57 in 2023, 65 in 2024 and 37 already

in 2025. Id. Moreover, the “[p]laintiff has filed lawsuits against NIH [regarding 39] of those

requests, resulting in [27] separate litigations.” Id.

Despite these circumstances, the Garcia-Malene Declaration details NIH’s actions in

response to each of the plaintiff’s FOIA requests at issue in this consolidated case. Regarding

FOIA Request 56560, the Garcia-Malene Declaration confirms that after acknowledging receipt

of the plaintiff’s request on June 17, 2021, see id. ¶ 24, NIH notified the plaintiff on May 26,

2022, that it had referred the request to NHGRI, see id. ¶ 25. That same day, “NIH sent a request

to the Center for Information Technology to conduct a search of David Schleuter’s account for

all emails” responsive to FOIA Request 56560. Id. ¶ 26. As indicated above, after the plaintiff

contacted NIH in August 2022 requesting an estimated date of completion, NIH gave an

9 estimated date of September 21, 2022, see id. ¶ 27, and on September 23, 202, NIH advised the

plaintiff that it was extending that date to November 30, 2022, see id. ¶ 28. The Garcia-Malene

Declaration represents that the date “was extended because review was required by the program

officials at the All of Us Research Program of NIH and they needed additional time for their

review.” Id.

Regarding FOIA Request 56559, the Garcia-Malene Declaration confirms that NIH

acknowledged receipt of the plaintiff’s request on June 17, 2021, see id. ¶ 33, and that “[o]n

March 14, 2022, NIH sent a request to the office of the All of Us Research Program for a search

of Dr. Sheri D. Schully’s emails” responsive to that FOIA request, id. ¶ 34. That program office

provided those records to the NIH FOIA office “in early October, 2022[,]” and NIH began

reviewing those records on October 13, 2022. Id. Then, “[i]n December 2022, the NIH FOIA

Office and NHLBI FOIA office discussed whether the two requests[—i.e., FOIA Requests

56560 and 56559—]were duplicates and it was decided that they were not but that they

overlapped.” Id. ¶ 35.

Based on the Garcia-Malene Declaration’s representations regarding NIH’s

communications and coordination regarding the plaintiff’s two FOIA requests prior to the

plaintiff filing suit, as well as its representations—which the plaintiff does not dispute—

regarding the unavoidable delays caused by the COVID-19 pandemic and the associated surge in

FOIA requests submitted to NIH, the Court concludes that the plaintiff has not established an

inference that NIH “forgot about, or sought to ignore” the plaintiff’s requests. Weisberg,

.

Contrary to the plaintiff’s position that “voluntary compliance was not forthcoming”

because NIH’s “behavior shows it was not prioritizing the request until legally compelled to do

10 so[,]” Pl.’s Reply at 7, prior to the initiation of the plaintiff’s lawsuits, NIH had in fact requested

that searches be conducted, coordinated with other offices, and had even commenced its review

of at least some of the responsive records. Thus, it appears clear that NIH intended to process

the plaintiff’s requests, rather than “stonewall[]” the plaintiff, as it alleges. Pl.’s Reply at 9; see

Calypso Cargo Ltd. v. U.S. Coast Guard,

(D.D.C. 2011) (denying a motion

for attorneys’ fees under the catalyst theory because “multiple divisions within the Coast Guard

had already begun coordinating and processing the plaintiffs’ request before [the] plaintiffs filed

their lawsuit”).

Further, the record shows that the NIH’s delay in processing the plaintiff’s requests was

clearly the result of “delayed administrative processing” caused by the COVID-19 pandemic,

Short,

, which undermines the plaintiff’s position that its lawsuits

substantially caused the agency to change course and produce the records. And, finally, although

the plaintiff argues that NIH’s “lack of responsiveness” contributes to an inference that the

agency did not plan to act on its requests, Pl.’s Reply at 10, NIH’s “failure to communicate [with

the plaintiff regarding its actions in response to the plaintiff’s request prior to the initiation of the

lawsuits], while regrettable, does not alone overcome its assurances that it intended to process

[the plaintiff]’s request . . . and experienced delays due to [the] backlog[ it was experiencing,]”

Am. Wild Horse Campaign v. U.S. Bureau of Land Mgmt., No. 22-cv-3061 (CRC),

, at *3 (D.D.C. Aug. 26, 2024).

Nor has the plaintiff established that there was a “sudden acceleration” in NIH’s

processing of the plaintiff’s FOIA requests after the plaintiff filed suit, such that the Court could

conclude “that the lawsuit[s] substantially caused the agency’s compliance with [the] FOIA.”

Elec. Privacy Info. Ctr.,

. Although the plaintiff argues that because NIH’s

11 production “within months” of the plaintiff filing its lawsuits establishes a “sudden acceleration”

in NIH’s processing, Pl.’s Reply at 8–9, the case law the plaintiff cites is inapposite. In EPIC II,

the agency in fact conceded that it “accelerated” the search for responsive records in response to

EPIC’s lawsuit. See EPIC II,

. And, consistent with what occurred here,

“courts have held that production delays of more than a month following a suit’s filing make it

‘seem[] 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.’” First Look Media Works, Inc.

v. U.S. Agency for Glob. Media, No. 20-cv-3499 (TJK),

, at *5 (D.D.C. Sept.

23, 2024) (quoting Am. Wild Horse Campaign,

, at *3). Thus, because NIH

did not process its first interim release until October 2024, nearly ten months after the plaintiff

filed its first lawsuit, nearly seven months after the plaintiff’s second lawsuit was filed, and

approximately four-and-a-half months after the Court consolidated the two cases, the Court

concludes that the plaintiff has failed to establish that its filing of the two lawsuits caused a

“sudden acceleration” of NIH’s processing of its requests.

Accordingly, the Court concludes that the plaintiff has not adequately shown that its

lawsuits were the catalyst for the defendants’ release of records, and it is therefore not eligible

for an award of attorneys’ fees under the FOIA. Thus, because the plaintiff has not shown that it

is eligible for an award of attorneys’ fees under the FOIA, the Court need not determine whether

it is entitled to such an award and must instead deny the motion for an award of such fees.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that it must deny the plaintiff’s motion for

attorneys’ fees.

12 SO ORDERED this 4th day of December, 2025. 5

REGGIE B. WALTON United States District Judge

5 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

13