1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENVIRONMENTAL INTEGRITY PROJECT, Plaintiff,

v. Civil Action No. 17-1203 (JDB) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Defendant.

MEMORANDUM OPINION Plaintiff Environmental Integrit y Project (“EIP”) brought this action against Defendant Environmental Protection Agency (“EPA”) seeking records of form er EPA Administrator Scott Pruitt’s travel vouchers and schedule of meetings with outside parties. EPA has since provided all requested documents to EIP. Claiming that it has “substantiall y prevailed” in its suit, EIP now moves the Court for attorneys’ fees pursuant to the fee-shiftin g provision of 5 U.S.C. § 552(a)(4)(E)(i). For the followi ng reasons, the Court finds th at EIP has not subs tantially prevailed in this FOIA litigation, and thus i s not eligible for an award of attorneys’ fees.
BACKGROUND On May 18, 2017, EIP submitted a FOIA request to EPA seeking re cords of former EPA Administrator Scott Pruitt’s meetings with outside parties and records of his travel from his first day at EPA, February 21, 2017, through the request date. Am. C ompl. [ECF No. 17] ¶¶ 21, 24. When the EPA Office of the Executive Secretariat (“OEX”) receiv ed EIP’s request, it determined that the Administrator’s calenda r and travel vouchers would be responsive. Decl. of Elizabeth White, Ex. 1 to Opp’n to Pl.’s Mot . for Att’ys’ Fees [ECF No. 2 8-1] ¶ 13. The same day that EIP2 submitted its request, the OEX received Administrator Pruitt’s calendar through March 31, 2017 from the staff at the Immediate Office of the Administrator (“O A”) 1 in response to separate FOIA requests from third parties. Id. ¶ 14. While this calendar set was responsive to part of EIP’s request, it did not satisfy it in full. Mem. of P & A in Supp. of Pl.’s Mot. for Att’ys’ Fees (“Pl.’s Mem.”) [ECF No. 24-1] at 2

– 3. OEX staff requested the additional responsive calendar reco rds and travel vouchers from the OA, but the OA was in transition, and its staff changed several times during the twenty-day statutory period. Decl. of Elizabeth Whi te ¶ 15; Opp’n to Pl.’s Mot. for Att’ys’ Fees (“Def.’s Opp’n”) [ECF No. 28] at 4. Although the OEX requested the additional calendar records four times within this period, its efforts wer e unsuccessful. Decl. of Elizabeth White ¶ 15. On June 13, 2017, OA staff did provide OEX with th e responsive travel vouchers, but the vouchers required review before sending to EIP. Id. ¶¶ 19

– 21. Twenty-one days after the FOIA request was received, on June 19, 2017, EPA sent EIP the c alendar records through March 31, 2017 but did not provide a date by which it would finish pr oduction. Id. ¶¶ 17–18. EIP confirmed that the calendar reco rds were responsive to its requ est for those dates. Ex. 1 to Proposed Briefing Sched. [ECF No. 10-1] at 2. Later that day, EIP filed its complaint. Decl. of Elizabeth White ¶ 18. One month later, on July 18, 2017, EPA produced the reviewed tr avel vouchers, and EIP confirmed that the production wa s responsive to its request. A m. Compl. ¶ 25. On September 27, 2017, EPA produced partially redacted calendars through May 18, 2017, which included updated records of the February 21 through March 31 calendar previously provided, plus an additional travel voucher. Decl. of Elizabeth White ¶¶ 25

– 26, 30. In the months that followed, EIP raised various questions concerning the bases for redactions in the pr oduced documents. Id. ¶ 31. On

1 The Immediate Office of the Administrator (OA) is the office r esponsible for maintaining the Administrator’s calendar and handling his travel arrangements. Decl. of Elizabeth White ¶ 8.3 December 5, 2017, EPA re-released f our revised calendar pages w hich had been redacted in error and removed other redactions as a discretionary matter. Id.; P l.’s Mem. at 6. EIP then informed EPA that it was satisfied that the information provided resolve d its FOIA request. Pl.’s Mem. at 6. EIP subsequently moved for atto rneys’ fees. Mot. for Att’y s’ Fees [ECF No. 24].
LEGAL STANDARD A court may “assess reasonable attorney fees and other litigati on costs reasonably incurred” in the course of FOIA litigation in which the complai nant has “substant ially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). Whether an award of attorneys’ fee s is proper depends on a two-step inquiry of (1) eligibility and (2) entitlement. See Church of Scientology of Cal. v. Harris, 653 F.2d 584, 587 (D.C. Cir. 1981). There is no presumption in favor of awarding fees to complainants who ultimately receive documents, and the court has “broad disc retion” when considering whether to grant an award of attorneys’ fees. Hall & Associates v. EPA , 210 F. Supp. 3d 13, 19 (D.D.C. 2016) (citing Nationwide Bldg. Main t., Inc. v. Sampson, 559 F.2 d 704, 713–14 (D.C. Cir. 1977) (“The single most important eleme nt under [FOIA’s attorneys’ fe es provision], however, is the [district] court’s discretion.”)). The fee-shifting provision of F OIA is not meant to punish an agency for delays in processing requests, but to reward plainti ffs whose lawsuits alter an agency’s slowness and bring about disclosure. Terris, Pravlik, & Millian, LLP v. Ctrs. for Medicare & Medicaid Servs., 794 F. Supp. 2d 29, 38 (D.D.C. 2011). To satisfy the first step, the complainant must “substantially prevail,” which means that the institution and prosecution of li tigation caused the agency to release responsive documents. Church of Scientology of Cal., 653 F.3d at 587 (citing Cox v. U .S. Dep’t of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979)). A complainant may “substantially prevail” b y obtaining relief through a “judicial order, or an enforceable written agreement or consent decree” or by obtaining a4 “voluntary or unilateral change in position” by the agency. 5 U.S.C. § 552(a)(4)(E)(ii)(I)–(II); Elec. Privacy Info. Ctr. (“EPIC”) v. U.S. Dep’t of Homeland Sec ., 218 F. Supp. 3d 27, 38 (D.D.C. 2016). Whether a plaintiff has “substantially prevailed” is “a question of fact for the District Court . . . .” Terris, Pravlik, & Millian, LLP, 794 F. Supp. 2d at 3 4. To satisfy the second step, the plaintiff must establish that i t is entitled to receive attorneys’ fees. Entitlement is based on factors including: “(i) the publ ic benefit from the case; (ii) the commercial benefit to the plaintiff; (iii) the nature of the pl aintiff’s interest in the records; and (iv) the reasonableness of the agenc y’s withholding of the requested documents. Morley v. CIA, No. 17-5114, 2018 WL 3351383 at *1 (D.C. Cir. July 9, 2018) ( citing Davy v. CIA, 550 F.3d 11 55, 1159 (D.C. Cir. 2008)). However, the Court need not proceed to the entitlement prong if the eligibility prong is not met. See Brayton v. Office of the U.S . Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011).
ANALYSIS EIP argues that it is eligible for attorneys’ fees under the “c atalyst theory” because its lawsuit caused EPA to change its position by pro ducing the resp onsive documents. Pl.’s Mem. at 8. Specifically, EIP contends that: “(i) EPA changed its posit ion when it released records responsive to EIP’s FOIA request after stating earlier in its a nswer that EIP was not entitled to the relief sought; (ii) EIP’s lawsuit caused EPA to process records more quickly than it would have without the litigation; and (iii) EIP’s amended complaint alleg ing improper withholding caused EPA’s discretionary disclosure of records previously redacted u nder FOIA exemptions.” Id. EIP also briefly asserts that the Court’s August 21, 2017 briefing schedule order cons titutes a “court order” under 5 U.S.C. § 552(a)(4)(E)(ii)(I). Id. at 9. In opp osition, EPA asserts that the lawsuit was not necessary to compel the production of documents because EPA began searching for5 records before EIP filed its c omplaint, and, upon actual and re asonable notice of t he request, EPA made a good-faith effort to search for responsive records and d ecide whether such material should be disclosed. Def.’s Opp’n at 9. To “substantially prevail” and re ceive attorneys’ fees, EIP mus t prove that it caused a voluntary or unilateral change in EPA’s position by filing its complaint. See Conservation Force v. Jewell, 160 F. Supp. 3d 194, 205 (D.D.C. 2016) (quoting Weis berg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984)). The key question under the “catalyst theory” is whether “the institution and prosecu tion of the litigati on cause[d] the agen cy to release the documents obtained during the pendency of the litigation.” Church of Scientology of Cal., 653 F.2d at 588. There must be a causal nexus between the initiation of litigation and the agency’s surrender of the requested information, and a plai ntiff must do more than claim post hoc, ergo propter hoc (“after this, therefore because of this”) to prove that a causal nexus exists. See Pub. Law Educ. Inst. v. U.S. Dep’t of Justice, 744 F.2d 181, 183 (D.C. Cir. 1984). In the context of attorney s’ fees, “the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation.” Codrea v. Bureau of Alcohol, Tobacco, Firearms & E xplosives, 272 F. Supp. 3d 49, 53 (D.D.C. 2017) (quoting Weisberg, 745 F.2d at 1496). 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, it cannot be said that the complainant su bstantially prevailed in [its] suit.” Church of Scientology of Ca l., 653 F.2d at 588 (quoting Cox, 60 1 F.2d at 6). 

### A. EPA’ S 

### R ELEASE OF 

### R ESPONSIVE AND 

### P REVIOUSLY 

### R EDACTED 

### R ECORDS EIP claims that EPA changed its position when it complied with EIP’s FOIA request after its answer had stated that EIP “failed to state a claim on whic h relief can be granted,” and denied that it had “knowledge or information sufficient to form a beli ef as to whether it has possession,6 custody, and control of the parti cular records Plaintiff seeks. ” Pl.’s Mem. at 9; Def.’s Answer [ECF No. 8] ¶ 15. The key question is whether “hard evidence—b eyond temporal proximity— supports the inference that the pl aintiff’s lawsuit caused the document release.” Conservation Force, 160 F. Supp. 3d at 206 ( finding no hard evidence beyond temporal proximity where “[n]o averments or other facts in the instant record indicate that De fendants only produced these documents because of [Plaintiff’s] lawsuit ... nor was t here any about-face from an in itial agency refusal”); see also Pyramid Lake Paiute Tribe of Indians v. U.S . Dep’t of Justice, 750 F.2d 117, 120 (D.C. Cir. 1984) (“Absent a ny evidence on the matter, the n atural inference is that [defendant] was simply responding to [plai ntiff’s] request.”). Here, it does not appear that EP A did in fact change its positi on, much less that the lawsuit caused such a change. The fact that EPA asserted the affirmati ve defense that EIP failed to state a claim that EPA violated FOIA does not suggest EPA was unwilli ng to answer the FOIA request. Similarly, EPA’s assertion that it had insufficient information to determine whether it possessed the requested documents does not suggest that EPA was refusing to search for the records. EPA had made requests internally for the records before the lawsuit was ever filed. Decl. of Elizabeth White ¶¶ 13–15, 19. Nothing in EPA’s answer suggests that the agency refused to search for or release responsive documents to EIP prior to EIP’s filing of th e complaint. Cf. Dorsen v. SEC, 15 F. Supp. 3d 112, 119–20 (D.D.C. 2014) (finding plaintiff was el igible for attorneys’ fees after agency initially withheld responsive documents and released the documents one day after complaint was filed). Absent evidence in the record to support that EPA only complied because of the lawsuit, the natural inference is that EPA was simply re sponding to EIP’s request by releasing the responsive record s. See Pyramid Lake Paiute Trib e of Indians, 750 F.2d at 120.7 EIP also asserts that EPA’s deci sion to release corrected and p reviously redacted records after EIP filed an amended complaint demonstrates further “volu ntary or unilateral change in position.” Pl.’s Mem. at 10. But EIP and EPA began discussing the redactions on September 27, 2017, and EIP did not file its ame nded complaint until October 12, 2017. Decl. of Elizabeth White ¶ 31; Am. Compl. [ECF No. 17]. While it may be relevant that a defendant released documents after a plaintiff filed the comp laint as a purely chronological matter, “it is also clear beyond cavil that the catalyst method requires more.” Conservation Force, 1 60 F. Supp. 3d at 206. EIP does not claim any causal nexus between the Amended Complaint and EP A’s disclosures besides temporal proximity, which is ins ufficient to prove causation. EIP’s bare reliance on “post hoc, ergo propter hoc” fails to establish a causal nexus between the litigation and release. See Pub. Law Educ. Inst., 744 F.2d at 183. EIP’s reliance on Judicial Watch v. U.S. Department of Justice, 878 F. Supp. 2d 225 (D.D.C. 2012), to support its claim is misplaced. There, the d efendant’s production of previouslywithheld documents resulted from the agency’s review of records conducted after the end of administrative processing and in the course of preparing for litigation. Id. at 233. The co urt therefore held that the defendant agency’s discretionary disclo sure of previously-withheld documents while preparing a moti on for summary judgment constit uted a “voluntary or unilateral change in position.” Id. at 232–33. But unlike the agency the re, here EPA did not defend its redactions throughout administrative proceedings and litigation ; instead, EPA promptly conferred with EIP and sought to address EIP’s concerns. See Decl. of El izabeth White ¶ 31. Hence, the connection between this suit and EPA’s release of redacted docu ments is too attenuated to indicate that EIP substantially prevaile d and is eligible for attorneys’ fees.8 

### B. EPA’ S 

### D ELAY IN 

### P RODUCING 

### R ESPONSIVE 

### R ECORDS EIP next asserts that EPA’s production of responsive records tw o days before filing its initial answer, after failing to provide an estimated date by w hich it would make the production, constitutes a “sudden acceleration” followi ng a delay that supp orts the conclusion that the lawsuit caused EPA’s FOIA compliance. Pl.’s Mem. at 10. EPA does not dispute that there was a delay in production, but claims that the delay was unavoidable and th at it exercised due diligence. Def.’s Opp’n at 13. “Sudden acceleration” in the processing of a FOIA request resul ting in disclosure made after a lawsuit is filed may “lead a court to conclude that . . . the filing of the lawsuit was the real reason for that acceleration.” T erris, Pravlik, & Millian, LLP , 794 F. Supp. 2d at 38 (citing Crooker v. U.S. Dep’t of the Treasury, 663 F.2d 140 (D.C. Cir. 1980)). However, if an “unavoidable delay accompanied by due diligence in the administrative processes wa s the actual reason for the agency’s failure to respond to a request, then it cannot be sai d that the complainant substantially prevailed in [its] suit.” Chur ch of Scientol ogy of Cal., 653 F .2d at 588 (quoting Cox, 601 F.2d at 6). Courts have found that a delay may be unavoidable when the agency is insufficiently staffed to respond to FOIA requests. See Conservation Force, 160 F. Su pp. 3d at 206 (finding no causal nexus when defendant’s delayed release was caused by the agency having only one employee tasked with processing FOIA reque sts, having a policy of proces sing FOIA requests in sequential order, and mistakenly referring th e plaintiff’s request to a di fferent agency for processing). When EIP filed its FOIA request, OEX had only three staff membe rs responsible for reviewing and processing records potentially responsive to FOIA requests; the same three staffers were also dealing with over 100 backlogged FOIA requests from t he previous year. Decl. of Elizabeth White ¶¶ 8, 10. At the time, EPA faced a 1200% incre ase in FOIA requests compared9 with the same time period the previous year. Id. ¶ 9. EPA als o faced ten pending lawsuits on FOIA requests, over which the same three OEX employees presided . Id. ¶ 11. During August and September of 2017, while EPA was preparing to produce the remai ning calendar and travel records, the Chief of Staff’s ability to review records was hin dered by the impact of Hurricanes Harvey, Irma, and Maria. Id. ¶ 29. All of these factors suppo rt the conclusion that unintentional administrative burdens and unavoi dable outside factors delayed EPA’s response, and that EIP’s lawsuit did not cause the eventual release. The record also demonstrates that in the face of these unavoida ble factors, EPA exercised due diligence to ensure the request was processed. Courts have held that a plaintiff’s lawsuit was not the catalyst for an agency’s delayed release of documents w hen the defendant made a goodfaith effort to search for information and respond to the FOIA request, and the ultimate release was the result of a diligent, ongoing process that began before the initiation of the l awsuit. See, e.g., Calypso Cargo Ltd. v. U.S. Coast Guard, 850 F. Supp. 2d 1, 5 (D .D.C. 2011) (holding that Coast Guard had begun processing reque st shortly after receiving it a nd before plaintiff filed complaint); Bigwood v. Def. Intelligence Agency, 770 F. Supp. 2d 315, 321 ( D.D.C. 2011) (holding that although production was “extraordinarily delayed,” the agency s earched for and reviewed documents prior to litigation, so no causal nexus existed betwe en the litigation and release). Here, EPA conducted a search for responsive documents before EIP file d the complaint. Decl. of Elizabeth White ¶¶ 13, 20. On th e same day EIP filed its FOIA request, EPA obtai ned a partially responsive version of A dministrator Pruitt’s calendar and then later sent it to EIP before litigation commenced. Id. ¶ 14. Also befor e EIP filed the complaint, OEX staff requested the remaining responsive calendar files from OA and received the travel vouch er records from OEX. Id. ¶¶ 15,10 19. These actions reflect a good faith effort to respond to EI P’s request and a diligent ongoing process that began before the initiation of the lawsuit. EIP points to statements made in the course of litigation to su pport its assertion that EPA was not in fact exercising due diligence. Because EPA asserted in its answer the affirmative defense that EIP’s request was “ overbroad” and EPA did not requ est clarification of the request, EIP claims EPA’s searches for documents must not have been reas onable. Reply in Supp. of Pl.’s Mot. for Att’ys’ Fees and Costs [ECF No. 31] at 8. Failure to request clarificati on could result in an ineffectual search not reasonably calculated to produce resp onsive results. See, e.g., Pinson v. U.S. Dep’t of Justice, 61 F. Supp. 3d 164, 180

– 81 (D.D.C. 2015) (finding the government’s search was not “reasonable [or] adequate” when it did not request nece ssary supplemental information before running the search). Here, however, nothing suggests th at EPA lacked sufficient information or that its searches were not calculated to locate responsive documents. EPA had already released some calendar r ecords to EIP before the filing of the lawsuit and then released responsive travel records before it filed its answer. Decl. of Elizabeth White ¶¶ 18, 21. It appears that clarification of EIP’s re quest was unnecessary—and indeed was not provided. EPA’s failure to use FOIA’s statutory mechanisms to extend its time to respond to EIP’s request also is not indicative of a lack of due diligence. An agency may extend FOIA’s twentyday statutory time limit by notifying the requester and providi ng the requester with an opportunity to either limit the scope of the request or arrange an alternat e time frame. 5 U.S.C. § 552(a)(6)(B)(i)

– (ii). An agency that does not take advantage of FOIA’s statuto ry mechanisms to extend its response time cannot rely on the administrative exha ustion requirement as a bar to judicial review. 5 U.S.C. § 552( a)(6)(C)(i); Cit izens for Resp onsibility & Ethics in Wash. v. Fed. Election Comm’n, 711 F .3d 180, 190 (D.C. Cir. 2013). However, “not all agency delay or failure11 to comply with FOIA’s procedural requirements will warrant judi cial intervention . . . .” Judicial Watch v. U.S. Dep’t of Homeland Sec., No. 16-5339, slip op. at 19 (D.C. Cir. July 17, 2018) (citing 5 U.S.C. § 552(a)(6)(c)). Here, E PA did not inform EIP of its intent to fulfill the request or provide EIP a date by which it would f inish the production within the t wenty-day statutory timeline. Am. Compl. ¶ 23; Decl. of Elizabeth White ¶ 17. Although such a fa ilure may support a claim that an agency has a policy or practice of violating FOIA’s procedural requirements, see Judicial Watch v. U.S. Dep’t of Homeland Sec., No. 16-5339, slip op. at 3 (D.C . Cir. July 17, 2018), it does not suggest in this case that EPA lacked due diligence in respondin g to EIP’s request. Given that EPA has not relied on the administrative exhaustion requirement to bar this lawsuit and began processing and responding to EIP’s request before EIP filed its complaint, EPA’s failure to adhere to statutory mechanisms does not establish that EIP’s lawsuit c aused EPA’s release of responsive documents. 

### C. T HE 

### C OURT 

### ’ S 

### A UGUST 

### 21, 2017 O RDER EIP also suggests that it has “substantially prevailed” because the Court’s August 21, 2017 scheduling order constitutes a “judicial order, or an enforceab le written agreement or consent decree” through which it obtained relief. See Pl.’s Mem. at 9; 5 U.S.C. § 552(a)(4)(E)(ii)(I). A scheduling order may constitute such “relief” when it requires the defendant to produce responsive documents by a particular date. See EPIC, 218 F. Supp. 3d at 3 9 (holding that a Scheduling Order requiring the defendant agency to produce documents by a certai n date changed the legal relationship of the parties and caused the plaintiff to substan tially prevail.). But the August 21, 2017 order merely required EIP and EPA to confer on and submit a proposed briefing schedule for the filing of dispositive motions . Unlike mandating the produc tion of documents by a specific date, ordering the parties to c onfer on a briefing schedule doe s not change their legal relationship.12 See EPIC, 218 F. Supp. 3d at 39. More fundamentally, the Augus t 21, 2017 Order did not provide EIP with any “relief.” Hence, EIP’s motion for attorneys’ fees cannot prevail on the judicial order theory.
CONCLUSION EIP has failed to demonstrate that it substantially prevailed i n its FOIA litigation. Therefore, it is not eligible to recover under the cost-shiftin g provision of FOIA, and its Motion for Attorneys’ Fees is denied. A separate order has been issue d on this date.

/s/ J OHN D. BATES United States District Judge Dated: July 25, 2018