United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JAMES ARTHUR MATTSON,

Plaintiff,

 v

FEDERAL BUREAU OF INVESTIGATION,

Defendant.

______________________________/

No C 08-4331 VRW

ORDER 

Plaintiff James Arthur Mattson (“Mattson”) seeks an award

of attorney fees under FRCP 54(d) and Civil LR 54-6 pursuant to the

attorney fees provision of the Freedom of Information Act (“FOIA”),

5 USC § 552(a)(4)(E). Doc #26 at 5. Mattson claims that he is

entitled to a fee award because his filing of a FOIA complaint, see

Doc #4, caused defendant Federal Bureau of Investigation (“FBI”) to

change its position voluntarily. Doc #26 at 5; 5 USC 

§ 552(a)(4)(E)(ii)(II). The FBI has filed an opposition. Doc #32. 

Mattson has filed a reply. Doc #33. For the following reasons,

Mattson’s motion is DENIED.

// 

//

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2

I

The following is a summary of the facts relating to

Mattson’s FOIA requests and administrative appeals and the FBI’s

responses between December 14, 2001 and December 4, 2008. 

On December 14, 2001, Mattson filed his initial FOIA

request with FBI headquarters. Doc #12-3 Exh A. The FBI responded

to Mattson’s request by letter dated January 25, 2002. Doc #12-3

Exh C. The FBI attached to its letter twenty-six redacted pages of

responsive records with corresponding exemptions and withheld one

page in full. Id. 

On March 30, 2002, Mattson filed an administrative appeal

with the Department of Justice’s Office of Information and Privacy

(“DOJ/OIP”), challenging several of the FBI’s listed exemptions and

seeking additional unreleased records. Doc #12-3 Exh D. 

On May 7, 2002, the DOJ/OIP acknowledged receipt of

Mattson’s appeal and advised Mattson that it had a substantial

backlog of pending appeals prior to his own and would address his

appeal in the order in which it was received. Doc #12-3 Exh E. 

Next, by undated letter, the DOJ/OIP advised Mattson that it was

affirming the FBI’s action in part and remanding Mattson’s request

to the FBI for a further search of cross-references. Doc #12-3 Exh

F; see also Doc #12-1 at 3 ¶12 (Hardy Decl). The letter advised

Mattson that if the FBI located additional records pursuant to this

remand it would “send the releasable portions of those records to

[Mattson] directly.” Doc #12-3 Exh F. The DOJ/OIP also informed

Mattson that the FBI had not searched its field offices for records

responsive to his FOIA request and advised Mattson to send his

requests directly to the FBI’s field offices. Id. 

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1

 The Minneapolis Field Office returned fourteen redacted pages

and withheld two illegible pages. Doc #14 at 11. The Chicago office

returned the same fourteen pages attached to a letter informing

Mattson that records located at the Chicago Field Office that might

have been responsive to his request were destroyed in 1978 pursuant

to the FBI’s retention schedule. Id at 13. The San Francisco office

returned the same redacted fourteen pages. Id. The San Diego office

responded that the main file responsive to Mattson’s request was

destroyed on January 17, 2007 pursuant to the FBI’s retention

schedule. Id at 14; Doc #12-4 Exh P.

3

Mattson did not send a FOIA request directly to the FBI’s

field offices until 2007. In letters dated March 21, 2007 and March

29, 2007, Mattson’s counsel filed identical FOIA requests with the

FBI’s Minneapolis, San Francisco, San Diego and Chicago field

offices. Doc #12-3 Exhs G & H (Minneapolis); Doc #12-4 Exhs L (San

Francisco), N & O (San Diego), J (Chicago). By letters addressed to

Mattson’s counsel dated April 2, 2007 and April 9, 2007, the FBI

acknowledged receipt of each of Mattson’s requests. Doc #12-3 Exh I

(Minneapolis); Doc #12-4 Exhs M (San Francisco), K (Chicago), P (San

Diego) (stating file responsive to Mattson’s March 21 and March 29,

2007 requests was destroyed January 17, 2007 pursuant to FBI

retention schedule). 

By letters dated July 2, 2007 and October 7, 2007, the FBI

advised Mattson of the status of his pending FOIA requests,

informing him that his requests were in the “‘perfected backlog’”

awaiting assignment to an analyst. Doc #12-4 Exhs R, S.

Between October 2007 and September 2008, Mattson received

responses from each field office and a total of fourteen unique

redacted pages of responsive documents, all generated from the San

Francisco office.1

 See Doc #14 at 11, 13–14.

// 

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2 These three categories were: (1) whether the FBI reasonably

conducted searches in response to the Chicago and San Diego requests

(to which the FBI informed him files had been destroyed pursuant to

the agency's retention schedule); (2) whether the FBI properly

redacted documents pursuant to the corresponding FOIA exemptions; and

(3) whether the FBI properly withheld two illegible documents. Doc

#19 at 3. The court denied Mattson’s motion for summary judgment and

granted the FBI’s except with regard to the FBI’s withholding of two

illegible pages, which it ordered the agency to produce to the court

for an ex parte in camera review. Id at 10. 

4

On September 17, 2008, Mattson filed the operative

complaint in this action, Doc #4, seeking three categories of relief

summarized by the court in its order on the parties’ cross-motions

for summary judgment. See Doc #19 at 3.2

 Mattson further asserted

that the FBI unnecessarily delayed its response to his FOIA

requests. Id. The court stated that “[w]hile any delay may have

been frustrating for Mattson,” he failed to state a claim related to

the delay. Id at 3–4. The court found that the FBI had conducted a

reasonable search and had provided Mattson with reasonable responses

to his FOIA requests. Doc #19 at 5. 

On December 4, 2008, the FBI released thirty-seven

additional redacted pages from its headquarters to Mattson. Doc

#12-6 Exh EE.

II

A plaintiff may obtain attorney fees under FOIA by

establishing he is both eligible and entitled to the award. Long v

IRS, 932 F2d 1309, 1313 (9th Cir 1991). For the reasons discussed

below, the court finds Mattson is not eligible for an award of

attorney fees and therefore the court does not address the issue of

entitlement. 

//

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FOIA provides in relevant part 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.” 5 USC 

§ 552(a)(4)(E)(i). A complainant can substantially prevail by

receiving relief through a judicial order, 5 USC § 552(a)(4)(E)(ii)

(I), or through a voluntary or unilateral change in position by the

agency, 5 USC § 552(a)(4)(E)(ii)(II). Courts have deemed this

second theory the “catalyst theory.” 

The Supreme Court had rejected the catalyst theory in

Buckhannon Bd & Care Home, Inc v W Va Dept of Health & Human

Resources, 532 US 598 (2001) (“Buckhannon”), holding that plaintiffs

have substantially prevailed and are eligible to recover attorney

fees in cases brought under the Fair Housing Amendments Act (“FHAA”)

and the Americans with Disabilities Act (“ADA”) only if they have

received a favorable judgment or court-ordered consent decree. Id

at 604. Circuit courts interpreted Buckhannon’s holding to apply in

cases brought under FOIA. See Oil, Chem & Atomic Workers Int’l

Union, AFL-CIO v Dept of Energy, 288 F3d 452, 456-57 (DC Cir 2002);

Union of Needletrades, Indus & Textile Employees, AFL-CIO v INS, 336

F3d 200, 203 (2d Cir 2003); Oregon Natural Desert Ass’n v Locke, 572

F3d 610, 616-17 (9th Cir 2009) (agreeing with DC Circuit and Second

Circuit that prior to the 2007 FOIA amendments, Buckhannon precluded

FOIA plaintiffs from recovering fees under the catalyst theory). 

Congress responded to Buckhannon by amending FOIA in 2007

to revive the catalyst theory in FOIA cases. See Oregon Natural

Desert Ass’n, 572 F3d at 615–16; 5 USC § 552(a)(4)(E)(ii)(II). 

Since 2007, plaintiffs can establish eligibility for attorney fees

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even if they have not satisfied Buckhannon by obtaining a judicial

order in their favor. Oregon Natural Desert Ass’n, 572 F3d at 615.

The Ninth Circuit has not selected a case for publication

since the 2007 FOIA amendments went into effect that discusses the

recovery of attorney fees under the catalyst theory. The court

therefore relies on two Ninth Circuit cases decided prior to

Buckhannon that discuss the recovery of attorney fees by a FOIA

plaintiff under the catalyst theory: Church of Scientology of Cal v

US Postal Service 700 F2d 486, 490 (9th Cir 1983) (“Church of

Scientology”) and Exner v FBI, 443 F Supp 1349, 1353 (SD Cal 1978),

aff’d, 612 F2d 1202, 1207 (9th Cir 1980).

A 

In Church of Scientology, the court held that a plaintiff

seeking to establish that he has substantially prevailed under the

catalyst theory must present convincing evidence that two threshold

conditions have been satisfied: (1) the action was reasonably

necessary to obtain the information and (2) the action had a

substantial causative effect on the agency’s release of the

documents in question. 700 F2d at 490. An action may be considered

reasonably necessary where the plaintiff has “a compelling need to

bring th[e] lawsuit.” Id (citing Exner, 443 F Supp at 1353).

“Whether a party has shown, in a particular case, that the

suit was reasonably necessary and that a causal nexus exists between

the action and surrender of information — that is, whether the party

has substantially prevailed — is a factual determination for the

district court to resolve.” Church of Scientology, 700 F2d at 489

(citing Cox v US Dept of Justice, 601 F2d 1, 6 (DC Cir 1979),

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rejected on other grounds by Crooker v Bureau of Alcohol, Tobacco &

Firearms, 670 F2d 1051 (DC Cir 1981)). 

B 

In Exner v FBI, the court held that a plaintiff who filed

a FOIA action to compel immediate disclosure of records from the FBI

had presented convincing evidence of both of the above threshold

conditions and therefore had substantially prevailed under the

catalyst theory. 443 F Supp at 1353. 

With regard to the first threshold condition, whether the

action was reasonably necessary, the court held that the plaintiff

had a compelling need to bring the action because “[sh]e was not

simply an ordinary citizen who was curious as to what information

the government might have compiled on her.” 443 F Supp at 1353. 

The plaintiff had learned that information from FBI files regarding

her alleged relationships with organized crime figures had been

leaked to the press. Id. The plaintiff believed the information

was inaccurate and its leakage exposed her to grave personal danger

because two of these organized crime figures had been murdered. Id. 

Because of these serious concerns, the court found that “it was

incumbent that plaintiff have an opportunity not only to review and

correct the information in the FBI's files, but to do so as soon as

possible.” Id. The FBI was unwilling to deviate from its policies

to give the plaintiff’s FOIA request preferential treatment and

therefore her only option was to bring suit against the agency. Id. 

With regard to the second threshold criteria, whether the

plaintiff’s action had a substantial causative effect on the

agency’s release of the requested documents, the court had “no doubt

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that [the plaintiff’s] action was directly responsible for delivery

of the documents plaintiff received.” 443 F Supp at 1353.

The Exner court considered an additional factor that

weighed in favor of concluding the plaintiff had substantially

prevailed under the catalyst theory. 443 F Supp at 1353. The

plaintiff had convinced the court to establish a new legal principle

that in exceptional cases like her own, the FBI must process

requests for information on a priority basis. Id. Because the

plaintiff had “acted as a private attorney general in vindicating an

important public policy,” the court concluded that her case

presented “precisely the type of situation Congress indicated would

be proper for an award of attorney fees.” Id.

III

Mattson argues that he has substantially prevailed in the

above-captioned matter under 5 USC § 552(a)(4)(E)(i)(II) because the

filing of his complaint caused the FBI to voluntarily or

unilaterally change its position and release documents it had

withheld previously. Doc #26 at 5. But Mattson fails to present

convincing evidence of the two threshold conditions required for

recovery under the catalyst theory and therefore his motion for

attorney fees is DENIED.

A

Mattson does not present convincing evidence that the

filing of this action was reasonably necessary to recover the

documents he requested from the FBI. Unlike the plaintiff in Exner,

Mattson does not contend that the FBI’s delayed response placed him

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in grave personal danger or that he was in immediate need of

documents in the FBI’s files. See Doc ##26, 33. Mattson states

that the purpose of his FOIA request is to document the FBI’s

actions against the Black Panther Party in the 1970s and to “add[]

to the body of historic documents concerning the agency’s abusive

and unlawful actions.” Doc #26 at 33. The FBI had responded to

Mattson’s FOIA requests by releasing forty pages of documents: 

twenty-six pages from the FBI’s headquarters in January 2002, Doc

#12-3 Exh C, and fourteen pages from the FBI’s field offices in

2007, Doc #14 at 11, 13-14. Based on the FBI’s responses to his

broad FOIA requests, Mattson fails to establish that filing this

action was reasonably necessary to recover the additional

information he sought.

B

Mattson also fails to present convincing evidence that the

filing of this action had a substantial causative effect on the

FBI’s release of additional documents. Mattson contends that the

mere fact that the FBI released thirty-seven additional responsive

pages on December 4, 2008, after this action was filed on September

17, 2008 (Doc #4), establishes that he has substantially prevailed. 

Doc #33 at 4. The court finds that the timing of these two events,

without more, is insufficient to establish causation.

Furthermore, an alternative explanation for FBI’s December

4, 2008 response appears in the record. Mattson sent his initial

FOIA request to FBI headquarters on December 14, 2001, Doc #12-3 Exh

A, and received a response on January 25, 2002. Doc #12-3 Exh C. 

Dissatisfied with the twenty-six pages he received, Mattson appealed

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to the DOJ/OIP challenging several of the FBI’s listed exemptions

and seeking additional unreleased records. Doc #12-3 Exh D. The

DOJ/OIP advised Mattson that it was affirming the FBI’s action in

part and remanding Mattson’s request to the FBI for a further search

of cross-references. Doc #12-3 Exh F; see also Doc #12-1 at 3 ¶12. 

The DOJ/OIP informed Mattson that if the FBI located additional

records pursuant to this remand it would “send the releasable

portions of those records to [Mattson] directly.” Doc #12-3 Exh F. 

The FBI’s release of the additional thirty-seven pages from its

headquarters on December 4, 2008 could have been the final result of

this remand rather than a change in position in response to

Mattson’s September 2008 lawsuit.

IV

Unlike the plaintiff in Exner, Mattson fails to present

convincing evidence to establish that the filing of this action was

reasonably necessary to recover the requested documents and that

this action had a substantial causative effect on their release. 

Instead, Mattson asks the court to infer from the timing of events

alone that he has met both threshold criteria. 

The facts relating to Mattson’s FOIA requests and the

FBI’s responses in the time period between December 14, 2001 and

December 4, 2008 are described at Part I of this order, supra at

2–4. This record paints a picture of an agency with a severe

backlog of FOIA requests attempting in good faith to respond, albeit

belatedly, to Mattson’s multiple requests in the order in which they

were received. See, e g, Doc #12-4 Exhs R, S (informing Mattson

that his requests were in “‘perfected backlog’” awaiting assignment

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to an analyst); Doc #12-3 Exh E (informing Mattson that agency had a

“substantial backlog of pending appeals”). Furthermore, the court

determined previously, in granting summary judgment for the FBI,

that the FBI had conducted reasonable searches and had provided

reasonable responses to Mattson’s FOIA requests. Doc #19 at 5. 

Mattson’s attempt to relitigate this issue in his reply, see Doc #33

at 6–7, is not persuasive. 

While the fact that the FBI released additional responsive

documents voluntarily and not by court order does not preclude

Mattson’s recovery of attorney fees, “the mere fact that the

information sought was not released until after the lawsuit was

instituted is insufficient to establish that a complainant has

‘substantially prevailed.’” Church of Scientology, 700 F2d at 492

(citing Cox, 601 F2d at 6).

For the foregoing reasons, Mattson’s motion for attorney

fees and costs is DENIED.

IT IS SO ORDERED.

 

VAUGHN R WALKER

United States District Chief Judge

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