1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEPHAN AGUIA R , Plainti ff

, v. Civil Action No. 1:18-cv-02823 (CJN)
EXECUTIVE OFFICE OF U.S. ATTORNEYS,
De f

endant

.

ORDER The government has moved for sum mary judgment in this Freedom o f 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] SummaryJudgment motion.” Pl.’s Mot. at 3. The government’s Motion for Summary Judgment is therefore granted, and for the r easons that follow, Aguiar’s Motion to Award Costs is denied. Aguiar filed this lawsuit seek ing documents relevant to several FOIA requests that Aguiar lodged with the Executiv e Office of U.S. Attorneys (EOUS A). See generally Compl., ECF No. 1. Each request arises out of the U.S. Attorney’s Offi ce for the District of Vermont’s investigation into Aguiar “fo r drug trafficking using an invest igative 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 Requ est (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 Req uest (Apr. 10,2 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 eac h of Aguiar’s requests varied, the government has submitted information showing that, after receipt of each request but pri or to the filing of this lawsuit, it responded by acknowledging receipt of the request, discussing t he total cost of the searches, asking Aguiar to narrow his reque sts, conducting narrowed searc hes, responding to Aguiar’s request for a fee waiver, a nd 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 l etter dated February 14, 2019, that EOUSA was withholding 124 records under various FOIA exemptions); id. ¶ 19 (stating that “EOUSA in a l etter dated June 24, 2019[,] respond ed to Plaintiff’s request 2017-0809 indicating that 13 pages i n full and 2 pages in part were provided to him”); id. ¶ 27 (noting that “[f]or three successive request[s] . . . , EOUSA s ent Plaintiff a letter dated June 24, 2019[,] advising that it had search ed for records in the USAO-V T and located over 100,000 pages of potentially res ponsive records”). “The district court ‘may assess against the United States reaso nable attorney fees and other litigation costs reasonabl y 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 sho w that it ‘substantially prevailed,’ . . . either by pointing to a favor able action by a court (now codified in the first prong of § 552(a)(4)(E)(ii)), o r through the catalys t theory (now codifi ed in the second prong).” Grand Canyon Tr. v. Bernhardt , 947 F.3d 94, 96 (D.C. Cir. 2020) (cita tion omitted). Under t he

1 Aguiar does not dispute the re cord submitted by the government and even cites to it in support of his Motion. See, e.g. , Pl.’s Mot. at 5–6.3 “catalyst theory,” a plaintiff has substantially prevailed “by showing that [his] lawsuit ‘substantially caused the governme nt to release the requested d ocuments before final judgment’”—even if the plainti ff did not receive a favorable ac tion 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 insu fficient 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 plainti ff has the burden of showing ‘that it is more probable than not that the g overnment 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 “de monstrates that the [governmen t] fully complied with his 2016/2017 FOIA/PA requests on ly after he filed his complain t in late-2018.” Pl.’s Mot. at 5. The government disagrees, argui ng that it “had already produced or was producing documents to [Aguiar] and/or cont acted [Aguiar] about na rrowing the scope of the requests due to the high fees associated with them[] a nd did not produce more documents or change its positions on the fees as a result of the Complai nt.” Defs.’ Mot. in Opp’n to Pl .’s Mot. at 3, ECF No. 24. Aguiar responds that the government ha d originally “found and withheld in 2019 124 pages of documents but months l ater found more,” Pl.’s Reply to Def.’s O pp’n at 2 (citation omitted), and that “the evidence shows that the [government] was motivated to turn over or withhold documents from [him] only aft er he filed his complaint,” id. Aguiar has not met his burden he re. To start, as Aguiar implic itly concedes, there is no “judicial order, or an enforceab le written agreement or consent decree,” § 552(a)(4 )(E)(ii)(I), that compelled the government to produ ce documents or information it was withholding, so he cannot4 succeed under FOIA’s first prong. As for whether Aguiar can sa tisfy the so-called catalyst theory, the record reflects that before this suit was filed, th e 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 “s ubstantially caused” these acts. Most of Aguiar’s assertions appear to point to the timing of events—namely, that he filed h is 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 insuff icient to establish causation.” (citation omitted)). Aguiar has therefore not met his burden t o show “that it is more probable than not that the government woul d not have performed the desir ed act”—here, producing his requested documents—“abs ent 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