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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

STEPHAN AGUIAR, 

 

Plaintiff, 

v. Civil Action No. 1:18-cv-02823 (CJN) 

EXECUTIVE OFFICE OF U.S. 

ATTORNEYS, 

 

 

Defendant. 

ORDER 

The government has moved for summary judgment in this Freedom of Information Act 

(FOIA) case, see generally Def.’s Mot. for Summ. J., ECF No. 14, while Plaintiff Stephan 

Aguiar, proceeding pro se, has filed a Motion to Award Costs, see generally Pl.’s Mot. to Award 

Costs (“Pl.’s Mot.”), ECF No. 22. In his Motion, Aguiar states that he “has decided not to 

oppose the [government’s] Summary Judgment motion.” Pl.’s Mot. at 3. The government’s 

Motion for Summary Judgment is therefore granted, and for the reasons that follow, Aguiar’s 

Motion to Award Costs is denied. 

Aguiar filed this lawsuit seeking documents relevant to several FOIA requests that 

Aguiar lodged with the Executive Office of U.S. Attorneys (EOUSA). See generally Compl., 

ECF No. 1. Each request arises out of the U.S. Attorney’s Office for the District of Vermont’s 

investigation into Aguiar “for drug trafficking using an investigative method that included 

wiretapping his [cellphones].” Id. at 2. Aguiar filed the requests between 2016 and 2017. E.g., 

FOIA Request (Apr. 27, 2016) at 1, ECF No. 14-3 at 1; FOIA Request (Mar. 17, 2017) at 1, ECF 

No. 14-3 at 21; FOIA Request (Mar. 20, 2017) at 1, ECF No. 14-3 at 33; FOIA Request (Apr. 10, 
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2017) at 1, ECF No. 14-3 at 38; FOIA Request (May 19, 2017) at 1, ECF No. 14-3 at 46. While 

the government’s response to each of Aguiar’s requests varied, the government has submitted 

information showing that, after receipt of each request but prior to the filing of this lawsuit, it 

responded by acknowledging receipt of the request, discussing the total cost of the searches, 

asking Aguiar to narrow his requests, conducting narrowed searches, responding to Aguiar’s 

request for a fee waiver, and releasing some documents. See Def.’s Statement of Undisputed 

Material Facts ¶¶ 1–31, ECF No. 14-1.1

 The government did, however, take additional steps 

after Aguiar filed his lawsuit. E.g., id. ¶ 14 (informing Aguiar by a letter dated February 14, 

2019, that EOUSA was withholding 124 records under various FOIA exemptions); id. ¶ 19 

(stating that “EOUSA in a letter dated June 24, 2019[,] responded to Plaintiff’s request 

2017-0809 indicating that 13 pages in full and 2 pages in part were provided to him”); id. ¶ 27 

(noting that “[f]or three successive request[s] . . . , EOUSA sent Plaintiff a letter dated June 24, 

2019[,] advising that it had searched for records in the USAO-VT and located over 100,000 

pages of potentially responsive records”). 

“The district court ‘may assess against the United States reasonable attorney fees and 

other litigation costs reasonably incurred in any [FOIA] case . . . in which the complainant has 

substantially prevailed.’” Summers v. Dep’t of Justice, 569 F.3d 500, 502 (D.C. Cir. 2009) 

(quoting 5 U.S.C. § 552(a)(4)(E)(i)). “[A] plaintiff could show that it ‘substantially prevailed,’ 

. . . either by pointing to a favorable action by a court (now codified in the first prong of 

§ 552(a)(4)(E)(ii)), or through the catalyst theory (now codified in the second prong).” Grand 

Canyon Tr. v. Bernhardt, 947 F.3d 94, 96 (D.C. Cir. 2020) (citation omitted). Under the 

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 Aguiar does not dispute the record submitted by the government and even cites to it in support 

of his Motion. See, e.g., Pl.’s Mot. at 5–6. 
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“catalyst theory,” a plaintiff has substantially prevailed “by showing that [his] lawsuit 

‘substantially caused the government to release the requested documents before final 

judgment’”—even if the plaintiff did not receive a favorable action by the court. Id. at 96 

(quoting Brayton v. Office of U.S. Trade Representative, 641 F.3d 521, 524–25 (D.C. Cir. 

2011)). But under the catalyst theory, “the mere filing of the complaint and the subsequent 

release of the documents is insufficient to establish causation.’” Id. at 97 (quoting Weisberg v. 

U.S. Dep’t of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984)). Instead, “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.’” Id. (quoting Pub. Citizen Health Rsch. Grp. v. 

Young, 909 F.2d 546, 550 (D.C. Cir. 1990)). 

Aguiar argues that the record “demonstrates that the [government] fully complied with 

his 2016/2017 FOIA/PA requests only after he filed his complaint in late-2018.” Pl.’s Mot. at 5. 

The government disagrees, arguing that it “had already produced or was producing documents to 

[Aguiar] and/or contacted [Aguiar] about narrowing the scope of the requests due to the high 

fees associated with them[] and did not produce more documents or change its positions on the 

fees as a result of the Complaint.” Defs.’ Mot. in Opp’n to Pl.’s Mot. at 3, ECF No. 24. Aguiar 

responds that the government had originally “found and withheld in 2019 124 pages of 

documents but months later found more,” Pl.’s Reply to Def.’s Opp’n at 2 (citation omitted), and 

that “the evidence shows that the [government] was motivated to turn over or withhold 

documents from [him] only after he filed his complaint,” id.

Aguiar has not met his burden here. To start, as Aguiar implicitly concedes, there is no 

“judicial order, or an enforceable written agreement or consent decree,” § 552(a)(4)(E)(ii)(I), that 

compelled the government to produce documents or information it was withholding, so he cannot 
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succeed under FOIA’s first prong. As for whether Aguiar can satisfy the so-called catalyst 

theory, the record reflects that before this suit was filed, the government had been in contact with 

Aguiar about his requests, worked with him to narrow his requests, and produced some 

documents. While Aguiar is correct that the government did produce more documents and 

update the numbers of documents it declared it was withholding after he filed the lawsuit, he has 

not made clear how the lawsuit “substantially caused” these acts. Most of Aguiar’s assertions 

appear to point to the timing of events—namely, that he filed his suit and then the government 

released records. But pointing to that timeline, without more, is insufficient to establish the 

necessary causality to recover fees. Grand Canyon Tr., 947 F.3d at 97 (“[T]he mere filing of the 

complaint and the subsequent release of the documents is insufficient to establish causation.” 

(citation omitted)). Aguiar has therefore not met his burden to show “that it is more probable 

than not that the government would not have performed the desired act”—here, producing his 

requested documents—“absent the lawsuit.” Id. (citation omitted). 

Accordingly, it is hereby 

ORDERED that the government’s Motion for Summary Judgment, ECF No. 14, is 

GRANTED. It is further 

ORDERED that Aguiar’s Motion to Award Costs, ECF No. 22, is DENIED. 

The Clerk of Court is DIRECTED to terminate the case. 

It is so ORDERED. 

DATE: July 27, 2020 

CARL J. NICHOLS 

United States District Judge