UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HERITAGE FOUNDATION, et al.,

Plaintiffs, Civil Action No. 22-02688 (AHA) v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

Memorandum Opinion and Order

The Heritage Foundation and Mike Howell sued the Department of Justice under the

Freedom of Information Act (“FOIA”), to compel expedited processing of their request for records

related to the execution of a warrant at President Trump’s Mar-a-Lago residence. The Department

has produced responsive records, and the plaintiffs now move for a determination of whether they

are eligible for and entitled to attorney’s fees. The court concludes the plaintiffs are not eligible.

I. Background

On August 11, 2022, the plaintiffs sent the Department a FOIA request for “[a]ll

communications external to the United States Government relating to a search warrant carried out

at Mar-a-Lago on or about August 8, 2022.” ECF No. 5-2 at 1. They asked for expedited processing

because the request involved “[a] matter of widespread and exceptional media interest in which

there exist[] possible questions about the government’s integrity [that] affect public confidence.”

Id. at 4–5 (quoting

(e)(1)(iv)).

A week later, the Department issued a memorandum to all its components stating that all

requests “related to the search warrant executed on August 8, 2022, at Mar-a-Largo [sic]” were granted expedited processing, relying on the same regulation the plaintiffs had invoked. ECF No.

49-1. On August 20, the plaintiffs sent the Department a letter to supplement their request for

expedited processing. ECF No. 5-3. Two days later, the Department wrote a letter confirming the

Director of Public Affairs “determined that [the plaintiffs’] request for expedited processing should

be granted,” the request was “assigned to the expedited track,” and processing of it had “been

initiated.” ECF No. 13-2 at 1. However, the Department mistakenly addressed the letter in one

location to the wrong individual and sent the letter to the wrong email address instead of to the

plaintiffs. ECF Nos. 13-2, 13-3.

Operating on the assumption the Department had not acted on their request for expedited

processing, the plaintiffs filed this suit. See ECF No. 5 ¶ 4. The plaintiffs sent a letter to the

Department saying they would move for a preliminary injunction if their request for expedited

processing was not granted and, after receiving no response, moved for a preliminary injunction.

ECF No. 11-1 at 5; ECF No. 11-4 at 4. The day after that motion was filed, the Department told

the plaintiffs that their request for expedited processing was granted on August 22, 2022, before

they filed suit, and the confirmation was mistakenly sent to the wrong email address. ECF No. 13-

1. The plaintiffs asked for written confirmation that all relevant Department components would

process their request on an expedited basis and the Department provided it. ECF No. 13 ¶¶ 5–6;

see ECF No 13-5. The plaintiffs then voluntarily withdrew their preliminary injunction motion.

ECF No. 13.

The parties agree the Department has since produced all responsive records without court

order. See ECF No. 48 at 7; ECF No. 49 at 2. The plaintiffs now move for a determination of

whether they are eligible for and entitled to attorney’s fees under FOIA.

2 II. Discussion

Under FOIA, the court “may assess against the United States reasonable attorney fees and

other litigation costs reasonably incurred” where “the complainant has substantially prevailed.”

(a)(4)(E)(i). To recover attorney’s fees, a plaintiff must first show they are eligible—

that is, the plaintiff “has ‘substantially prevailed’ and thus ‘may’ receive fees.” Brayton v. Off. of

the U.S. Trade Representative,

(D.C. Cir. 2011) (quoting Judicial Watch, Inc.

v. U.S. Dep’t of Commerce,

(D.C. Cir. 2006)). If the plaintiff is eligible, the

court then “considers a variety of factors to determine whether the plaintiff” is entitled to fees—

that is, whether they “should receive fees.”

Here, the plaintiffs have not shown they are eligible for fees. To show they substantially

prevailed, the plaintiffs must show they “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). The

plaintiffs acknowledge they did not obtain relief through a judicial order but argue they satisfy the

second avenue, sometimes called the “catalyst theory.” See Grand Canyon Tr. v. Bernhardt,

(D.C. Cir. 2020); ECF No. 48 at 8. Under that theory, the plaintiffs substantially

prevailed if their lawsuit “substantially caused the government to release the requested documents

before final judgment.” Grand Canyon Tr.,

(quoting Brayton, 641 F.3d at 524–25).

The key question, then, is “whether the institution and prosecution of the litigation caused the

agency to release the documents obtained,” and “the plaintiff has the burden of showing that it is

more probable than not that the government would not have performed the desired act absent the

lawsuit.”

(cleaned up). Here, the plaintiffs argue that their suit and, in particular, their

preliminary injunction motion, caused the Department to process their request on an expedited

basis. See ECF No. 48 at 8–9.

3 The court finds that the plaintiffs have not substantially prevailed on this theory and that

the Department would have made—and, in fact, did make—the decision to expedite the plaintiffs’

request across all components before the plaintiffs filed suit. The record shows the Department

sent a memorandum to all its components nearly three weeks before the plaintiffs filed their suit,

stating that the decision had been made to grant expedited processing for all FOIA requests for

“Department of Justice documents related to the search warrant executed on August 8, 2022, at

Mar-a-Largo [sic].” ECF No. 49-1. And, over two weeks before the plaintiffs filed suit, the

Department put in writing that the expedited processing applied to the plaintiffs’ request. See ECF

No. 13-2. Although this notification was sent to the wrong address, the court finds it nonetheless

shows the Department decided to expedite the plaintiffs’ request before their suit and preliminary

injunction motion. The plaintiffs’ suit and preliminary injunction motion accordingly did not cause

the Department to expedite processing. 1

The plaintiffs ask the court not to credit the Department’s contemporaneous documentation

instructing components to expedite processing and issuing a notification letter confirming the

plaintiffs’ request would be expedited, saying the Department was not “actually” going to expedite

their request without their suit and motion. ECF No. 48 at 9. The plaintiffs say certain Department

components may not have expedited their request, relying on the fact that the Office of the Solicitor

General did not affirmatively respond to the plaintiffs’ expedition request and the Executive Office

for United States Attorneys had erroneously denied expedition of a different FOIA request.

at

1 The court assumes, without deciding, that causing the Department to process documents on an expedited basis can serve as the “change in position by the agency” required by the statute.

(a)(4)(E)(ii)(II). Although the D.C. Circuit has not squarely addressed this question, the Department has not argued otherwise in this case. See Grand Canyon Tr., 947 F.3d at 97–98 (“We need not decide whether a ‘sudden acceleration’ of production can, of itself, represent a ‘change in position’ within the meaning of the statute.”).

4 6, 9. But, as the plaintiffs acknowledged in their preliminary injunction motion, the determination

of the Director of Public Affairs controls. ECF No. 11-1 at 28; see

(e)(2). Here,

the Director of Public Affairs made that decision before the plaintiffs sued, and there is no

indication that either the Solicitor General, the Executive Office, or any other component failed to

expedite the plaintiffs’ request.

The plaintiffs also ask the court to find that the Department’s course of conduct shows it

would not “actually” have expedited their request without the preliminary injunction motion. ECF

No. 48 at 9. They point to the fact that the Department misaddressed the notification to them and

did not respond to their pre-motion communication attempts, as well as the fact that the plaintiffs

withdrew their preliminary injunction motion only after the Department confirmed in writing that

all relevant components would expedite their request.

The court finds that these circumstances

do not change the fact that the Department had decided to expedite the plaintiffs’ request

irrespective of their suit and motion. To be sure, the Department’s misstep and lack of

communication may have been frustrating and may have been what caused the plaintiffs to file

their suit and preliminary injunction motion. But the question in shifting fees to the government is

not whether the plaintiffs felt the need to sue to protect their interests, it is whether the plaintiffs’

suit “substantially caused the government to release the requested documents before final

judgment.” Grand Canyon Tr.,

(quoting Brayton, 641 F.3d at 524–25); see also

(finding the plaintiff failed to show suit caused agencies to release documents where “the

plaintiff’s own evidence makes clear that both agencies had begun processing the plaintiff’s

request well before the lawsuit was initiated” and “neither agency suggested it would fail to comply

with the request” (cleaned up)).

5 The court accordingly finds the plaintiffs have not “substantially prevailed” and are not

eligible for attorney’s fees.

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

III. Conclusion

For these reasons, the plaintiffs’ motion for a determination of eligibility for and

entitlement to attorney fees, ECF No. 48, is denied.

AMIR H. ALI United States District Judge

Date: December 16, 2025

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