UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) CONSERVATION FORCE , ) ) Plaintiff , ) ) v. ) Civil Action No. 12

- cv - 1665 (KBJ) ) SALLY JEWELL , in her official capacity as Secretary of the U.S. Department of the Interior, et al. , ) ) ) ) Defendant s . ) )

MEMORANDUM OPINION A threshold requirement for a plaintiff who seek s to recover attorneys ’ fees for claims brought under the Freedom o f Information Act (“FOIA”), 5 U.S.C. § 552 et seq. , is to demonstrate that he ha s “substantially prevailed” in the underlying litigation in a manner that makes him eligible for fees. 5 U.S.C. § 552(a)(4)(E)

. Before this Court at present is a n attorneys’ fee s motion that Plaintiff Conservation Force , a nonprofit wildlife

- conservation foundation, has brought based on a FOIA lawsuit that the organization filed in 2012 against the Department of the Interior , the United States Fish and Wildlife Service (“FWS”) , and high

- level executive officers of those agencies in their official capacities (collectively “Defendants”) . A s explained fully below, this Court has concluded that Conservation Force has not made the required eligibility showing in support of its moti on for attorneys’ fees , despite the fact that Defendants provide d Conservation Force many of the desired documents soon after the suit’s initiation, and Defendant s also revamped the descriptions of redacted information in the2

agency’s Vaughn I ndex during t he course of the litigation pursuant to an order of the
Court

. 1 Consequently, and as set forth in the separate order that accompanies this Memorandum Opinion, Conservation Force’s motion for attorney s ’ fees and costs will be DENIED

.
I. BACKGROUND A. The Wood Bison Cases T h is Court sketched out much of the relevant background at length in the
M emorandum O pinion that it issued in this case on September 2, 2014 , s ee Conservation Force v. Jewell , 66 F. Supp. 3d 46, 52

– 54 (D.D.C. 2014) ( “ Wood Bison
III ”) ; therefore , only broad strokes are necessary here

. Canada permits limited hunting of t he Canadian wood bison

— a species that has been of concern to environmentalists for some time, see id. at 53

— through the sale of “wood bison hunts [,] ” Conservation Force v. Salazar , 715 F. Supp. 2d 99, 101 (D.D.C. 2010) ( “ Wood Bison I ” )

. I n the early 2000s, four American hunters purchased hunts and successfully hunted wood bison , see id. , and w ith the assistance of Conservation
Force , each of these individuals submitted appl ications to the FWS for permission to import their wood bison trophies into the United States. See i d. Conservation Force and the hunters sued the FWS in this District in 2009, after what they considered to be an unreasonably delayed response; their comp laint alleg ed that the FWS’s failure to respond to their important request violated several statutory and constitutional provisions. See id. at 10 2

– 08. T he FWS then denied the import applications while the

1 A “ Vaughn index is a docume nt that correlates all withholdings with specific FOIA exemptions and the agency’s specific nondisclosure justifications.” Pub. Citizen v. U.S. Dep’t of Health and Human Servs. , 66 F. Supp. 3d 196, 200 n.2 (D.D.C. 2014) (citing Vaughn v. Rosen , 484 F.2d 8 20, 827 (D.C. Cir. 1973)).3

lawsuit was pending , and the court dismissed the plaintiffs’ action as moot. See id. at 105

– 07

. Undaunted, Conservation Force sued the FWS again, this time alleging that the agency’s denial of the request to import the hunting trophies violated various statutory provisions. See Conservation Force v. Salazar , 851 F. Supp. 2d 39 , 42 (D.D.C. 2012) ( “ Wood Bison II ” )

. T his suit asserted , in essence, that the denial was based on impermissible policy reasons (as opposed to good science) , s ee, e.g. , id. at 45

– 46 , and the cou rt ultimately agreed with Conserv ation Force’s argument that the administrative record could not support the agency’s decision, remand ing the applications to FWS for reconsideration , s ee id. at 52

– 5 4

. The FOIA law suit that is the basis for the instant motion for attorney s ’ fees arose
out of Conservation Force’s interest in discover ing the true rationale for the initial import denials. See Wood Bison III , 66 F. Supp. 3d at 54. A pparently, a s part of the administrative record in Wood Bison II , Conservation Force had received documents tha t appeared to contain the reason that a particular government attorney had recommended that the permits be denied , but t he “specific rationale for recommending denial of the permits” had been redacted

. Id. at 53. Consequently , on April 16, 2012,
Conservat ion Force submitted a FOIA request to the FWS , requesting “any and all documents, correspondence, and notes of meeting s between the [FWS] and the Office of the Solicitor regarding import permits for Canadian wood bison trophies since 2000 including any doc uments excluded as purportedly privileged from the administrative record in Wood Bison II .” Id. (internal quotation marks and citations omitted). The FWS acknowledged receipt of the FOIA request on April 1 7 , 2012

. ( See4

Pl.’s Mem. in Supp. of Pl.’s Mot. for Atty.’s Fees and Costs (“Pl.’s Mem.”), ECF No.
37

- 1, at 3.) 2 The agency next communicated with Conservation Force on August 9 , 2012 ; it sent a letter to explain that, because the “request consisted primarily of documents that were previously identif ied as privileged ” during Wood Bison II , the FWS had forwarded the document request to the FOIA Officer for the Department of the Interior Solicitor’s Office for his review

. ( Second Decl. of Timothy Van Norman (“ Second Van Norman Decl.”) , ECF No. 12

- 1, ¶ ¶ 2

– 3 ; see also Pl.’s Mem. at 3

– 4

. ) When Conservation Force had still received no response by October 4, 2012

— and had apparently unsuccessfully tried to contact certain individuals identified as contact persons in the August 9 letter ( see Pl.’s Mem. at 4)

— it filed a law suit in this Court , alleging that the FWS had fail ed to comply with the FOIA’s requirement that document

production determinations be made expeditiously, see 5 U.S.C. § 552(a)(6). ( See Compl., ECF No. 1 , ¶¶ 42

– 46 .) Notably , with respect to the relief sought, Conservation Force’s complaint specifically requested that the Court (1) declare that the government violated the FOIA when it failed to respond to the April 2012 request “in accordance with the statutory deadline” ; (2) declare that the government was continuing to violate the FOIA for the same reasons; (3) issue an injunction ordering the government to provide all records described in the April 2012 FOIA request that could not lawfully be withheld ; and (4) grant Plaintiff costs of litig ation. ( See Compl. at 12

– 13.) Subsequently, in November of 2012 , the FWS and the Department of the Interior jointly determined that the August referral to the D epartment of the Interior had been a mistake and that the FWS should resume processing the docum ents. ( See Second Van

2 Page

- number citations to the documents the parties have filed refer to the page numbers that the Court’s electronic filing system automatically assigns.5

Norman Decl. ¶ 6.) Around the same time, Defendants asked the Court for a ten

- week stay of the proceedings to permit the agency to search for and review responsive documents. ( See Defs.’ Mot. to Stay, ECF No. 9 , at 1

– 2 .) Conservat ion Force opposed the stay motion on the grounds that Defendants had failed to establish the “exceptional circumstances” the FOIA requires to justify an administrative stay , see 5 U.S.C. § 552(a)(6)( C ). ( See generally Pl.’s Opp’n to Defs.’ Mot. to Stay, E CF No. 10.) But then, o n December 12, 2012 , and before the Court ruled on the stay request , Defendants released 1,026 pages of unredacted responsive documents and simultaneously reiterated that it expected to complete its review

— including poss ible redactions or withholdings

— of all remaining responsive material by January 31 , 2013 . ( See Defs.’ Reply to Pl.’s Opp’n to Stay , ECF No. 12 , at 1 .) On January 3, 2013, t h is C ourt addressed the pending stay request by ordering Defendant s to “show cause in writing why the requested extension of time should be granted” ( s ee Order (“Show

- Cause Order”), ECF No. 13 , at 1 ) , and gave Defendants until January 10 to better explain why the C ourt should grant an extension to p rocess the FOIA reques t. ( See id. at 4. ) Shortly thereafter, on January 9, 2013, the FWS provided its final release of documents

— 577 pages of partially redacted responsive records

— and withdrew its stay request as moot

. ( See generally Defs.’ Resp. t o Show

Cause Order, ECF No. 14.) The parties then proceeded to clash on the redaction front

. Defendants filed a motion for summary judgment , a supplemental declaration from a n FWS official, and a Vaughn I ndex as proof that the FOIA’s enumerated exceptio ns supported the withholding of certain information

. See Wood Bison III , 66 F. Supp. 3d at 54.6

P redictably, Conservation Force disagreed , offering its own motion for summary judgment that asserted that Defendants’ materials “f[e]ll woefully short of the level of specificity required to justify withholdings under [the FOIA exemptions claimed ]. ” See id. at 54 , 58

. This Court resolved the redaction dispute, in part, on September 2, 2014, by concluding that Defendants were entitled to summary judgment on t he subset of redactions that were based on the FOIA’s attorne y - client

- p rivilege and personal

information exemption s ; the Court, however, denied without prejudice both parties’

cross - motions for summary judgment with respect to the withholdi ngs that were based on the work

- product and deliberative

- process privilege s . See id. at 62, 6 6

– 68. The Court determined that Defendants had provided insufficient evidence to permit a ruling
as to whether or not those claimed exemptions actually applied , and as a result, it permit ted Defendants to choose , on the one hand, to file “ a supplemental Vaughn Index, affidavit, or declaration that provides the necessary additional information regarding the redacted documents [,] ” or , on the other, to release the challenged withheld content. Id.
at 68 ; ( see also Order (“September 2 Order”), ECF No. 26, at 1

– 2). Defendants opted to file a supplemental Vaughn Index and affidavit on October 2, 2014 ( s ee Defs.’ Notice of Filing, ECF No. 30) , and orally renewed their motion for summary judgment at a status conference held on April 7, 2015. At that conference, Conservation Force “conceded that the Defendants’ revised Vaughn index [was] sufficient to address the concerns the Court expressed in [ Wood Bison III ’ s Memorand um Opinion ]

. ” (Order of April 7, 2015, ECF No. 36 , at 2 .) Accordingly , the Court granted Defendants summary judgment on the remaining redactions and dismissed Conservation Force’s initial7

complaint. ( See id .)
B. The Instant Motion For A ttorneys’ Fees O n April 20, 2015, Conservation Force filed the instant motion for reasonable attorneys’ fees and costs. ( See generally Pl.’s Mot. for Atty.’s Fees and Costs (“Pl.’s Mot.”), ECF No. 37; Pl.’s Mem. ; Defs.’ Opp’n to Pl.’s Mot. (“Def.’s Opp’n” ), ECF No. 41; Pl.’s Reply in Supp. of Pl.’s Mot. (“Pl.’s Reply”), ECF No. 44.) In the motion, Conservation Force maintains that initiating the Wood Bison III litigation caused the
FWS to “change its position and provide some of the relief sought by the s uit, [ i.e. , ] release of records related to wood bison import permits.” (Pl.’s Mem. at 10.) Conservation Force also asserts that the Court’s opinion and order issued September 2, 2014 “grant[ed] Conservation Force much of the substantive relief that it

. . . requested”
in its initial c omplaint. ( Id. at 11.) In their opposition to the fee motion, Defendants
argue that Conservation Force is ineligible for any fees under the terms of the applicable statute, and that even if it is deemed eligible , Conservati on Force should only receive a portion of the fees incurred in the matter because much of the litigation was spent litigating issues on which Conservation Force did not prevail. ( See Defs.’ Opp’n at 4

– 5.)
II. MOTIONS FOR ATTORNEYS’ FEES IN F OIA CASES In sec tion 552(a)(4)(E) of Title 5 of the United States Code

— which is a provision of the FOIA statute

— Congress has s pecified that “[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any cas e under this section in which the complainant has substantially prevailed

. ” 5 U.S.C. § 552 (a)(4)(E) (i)

. The statute does not authorize courts to assess what it means to “prevail” (substantially or otherwise) in a FOIA case in the abstract;8

rather, the st atute further provides:

(ii) For purpose s of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either

— (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or uni lateral change in position by the agency, if the complainant’s claim is not insubstantial. 5 U.S.C. § 552(a)(4)(E)(ii). In Brayton v. Office of the U.S. Trade Representative , 641
F. 3d 521 (D.C. Cir. 2011), the D.C. Circuit made clear that the language Congress uses to authorize attorney s ’ fees in FOIA cases “naturally divides the attorney

- fee inquiry into two prongs, which our case law has long described as fee ‘eligibility’ and fee ‘entitlement.’” Id. at 524 (quoting Judicial Watch, Inc. v. U.S. Dep’t of Commerce , 470 F.3d 363, 36 8

– 69 (D.C. Cir. 2006)). It further explained: “ [t] he eligibility prong asks whether a plaintiff has ‘substantially prevailed’ and thus ‘may’ receive fees[,]” id. (citation omitted), and “[i]f so, the court proceeds to the ent itlement prong and considers a variety of factors to determine whether the plaintiff should receive fees[,] ”
i d . (emphasis in original ) (citation omitted)

. To undertake the requisite eligibility analysis, the court must determine whether

“ the complainant has substantially prevailed” in the FOIA litigation insofar as he has “obtain ed relief through ” one of the two ways set forth above: either (1) an order of the
court or enforceable agreement of the parties, or (2) a “voluntary or unilateral change in posit ion by the agency,” assuming the plaintiff’s claim is not insubstantial

. 5 U.S.C. § 552(a)( 4)(E)(i)

– (ii). With respect to the first manner of demonstrating eligib ility for fees

— this Court will call it the “court

- order” method of establishing eligibility, for short

— the plaintiff must identify a court order that “constitutes judicial relief on the merits resulting in a court

- ordered change in the legal relationship between the plaintiff9

and the defendant.” People for the Ethical Treatment of Animals v. Nat ’l Insts

. of Health , No. 10

- 1818, 2015 WL 5326103, at *4 (D.D.C. Sept. 11, 2015) (quoting Campaign for Responsible Transplantation v. FDA , 511 F.3d 187, 194 (D.C. Cir. 2007) ) (internal quotation marks omitted) ; see also Campaign fo r Responsible Transplantation , 511 F.3d at 194. Such order must have “require[d] a party ‘to do what the law required

— something that it had theretofore been unwilling to do.’” People for the Ethical Treatment of Animals , 2015 WL 5326103, at *4 (quoting C ampaign for Responsible Transplantation , 511 F.3d at 196). The second method of establishing that the party seeking fees substantially prevailed in the FOIA action , see 5 U.S.C. § 552(a)(4)(E)(ii)(II), is ordinarily called the “catalyst” method , and it per mits the plaintiff to claim eligibility even without a favorable court judgment , if “the litigation substantially caused the requested records to be released. ” ACLU v. U.S. Dep’t of Homeland Sec. , 810 F. Supp. 2d 267, 274 (D.D.C. 2011) (quoting N.Y.C. A pparel F.Z.E. v. U.S. Customs & Border Prot. Bureau , 563 F. Supp. 2d 217, 221 (D.D.C. 2008) ) (internal quotation marks omitted)

. However, it is clear beyond cavil that, because “ [r] ecovery under the catalyst [method] . . . turns on causation[,]” Citizens for Responsibility & Ethics in Wash. v. DOJ , 83 F. Supp. 3d 297, 303 (D.D.C. 2015) (citing , inter alia , Cox v. DOJ , 601 F.2d 1, 6 (D.C. Cir. 1979)), “[t]he ‘mere filing of the complaint and subsequent release of documents,’” without

more, will not suffice to show a causal nexus, id. (quoting Weisberg v. DOJ , 745 F.2d 1476, 1496 (D.C. Cir. 1984) ). Moreover, and accordingly, in order to “prevent plaintiffs from being the beneficiaries of purely extrinsic factors, courts are directed to look at the ci rcumstances surrounding disclosure.” Id. Ultimately, i t is the plaintiff’s10

burden to show that the catalyst pathway applies , see Dorsen v. SEC , 15 F. Supp. 3d 112, 118 (D.D.C. 2014) ; if nothing else, this at least means that equipoise on the question of causation will not do , s ee Pub. Citizen Health Research Grp. v. Young , 909 F.2d 546, 550 (D.C. Cir. 1990) (holding, in the context of an analogous fee statute’s catalyst provision, that “the claimant must show that it is more probable t han not that the government would not have performed the desired act absent the lawsuit” (citations omitted))

. As mentioned, and significantly for present purposes, a plaintiff must “ obtain [] relief through” either the court

- order or catalyst methods in or der to be eligible for attorney s ’ fees. See 5 U.S.C. § 552(a)(4)(E)(ii) (emphasis added ). The FOIA defines “relief” broadly as, among other things, the “taking of

. . . action on the application of or petition o f, and beneficial to, a person[,]” 5 U.S.C. § 551(11), and in this regard, the statute appears merely to have imported the ordinary meaning of “ relief ” into the agency context. See Black’s Law Dictionary 1482 ( 10 th ed. 2014 ) (defining “relief , ” as relevant here, as the “re dress or benefit

. . . that a party asks of a court”).
A FOIA plaintiff who demonstrates that he has obtained relief through either of the two statutorily prescribed methods discussed above has “substantially prevailed” within the meaning of the statute, a nd is thus eligible to recover fees; he must then proceed to show an entitlement to fees under a “multi

- factor standard” that serve s to guide the court’s decision making regarding whether or not it should exercise its discretion to grant fees to an eligibl e plaintiff. Dorsen , 15 F. Supp. 3d at 117 (citation omitted)

. Under this framework , courts consider “(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s11

interest in the records; and (4) the reasonableness of the agency’s withholding of the requested documents.” Id. (internal quotation marks and citation omitted). No factor is dispositive, and “sifting of th[e] criteria over the facts of a case is a matter of district

c ourt discretion.” Id. (internal quotation marks and citation omitted). Moreover, c ourts have explained that the various factors are merely tools to aid in the pursuit of the “two separate and distinct” overriding objectives of the FOIA: “to encourage [F OIA] suits that benefit the public interest , and to compensat [e] for enduring an agency’s unreasonable obduracy in refusing to comply wi th the [FOIA] requirements.” ACLU , 810 F. Supp. 2d at 276 (alterations in original) ( int ernal quotation marks and citation omitted). Thus, t he touchstone is always “whether an award of attorney fees is necessary to implement the FOIA.” Davy v. CIA , 550 F.3d 1155, 1158 (D.C. Cir. 2008) (citation omitted)

. Finally, it is important to note t hat, even after finding eligibility and entitlement, district courts retain the discretion to modify a fee award based on the reasonableness of the request and the particular facts of the case. See Judicial Watch , 470 F.3d at 369

. Thus, once a plaintiff successfully surmounts the eligibility hurdle, the fee inquiry becomes highly case specific. See, e.g. , Judicial Watch, Inc. v. DOJ , 878 F. Supp. 2d 225, 238

– 39 (D.D.C. 2012) (examining whether the fee s that were incurred were reasonable, even after the plaintiff had demonstrated eligibility and entitlement).
III. DISCUSSION Conservation Force asserts that it is eligible for , and is entitled to recover, the attorneys’ fees and costs that it incurred in litig ati ng Wood B ison III ( the FOIA action ) against Defendants

. In support of its argument for fees, Conservation Force points, first, to this Court’s Order denying without prejudice Defendants’ motion for summary12

judgment in part and permitting the submission of a revised Vaughn Index ( see September 2 Order at 1

– 2) , and second, to what it claims is the fact that the lawsuit prodd ed the agency into action. ( See Pl.’s Mem. at 10

– 11.) However, f or the reasons explained below, this Court concludes that this is not a “case in which the complainant has substantially prevailed[,]” 5 U.S.C. § 552(a)(4)(E)(i i ) , because C onservation Force has not demonstrated that it “obtain ed relief through either” a court order or a “voluntary or unilateral change in position by th e agency , ” i d. § 552(a)(4)(E)(ii)(I)

– (II). Consequently, the pending motion for attorneys’ fees will be denied. A. Conservation Force Did Not Obtain Relief Through A Court Order As mentioned, success via the court

- order method requires the movant to identi fy

a n order of the court that “constitutes judicial relief on the merits ” because it result ed in

“ a ‘court

- ordered change in the legal relationship between the plaintiff and the defendant. ’ ” People for the Ethical Treatment of Animals , 2015 WL 5326103, at *4 (quoting Campaign for Responsible Transplantation , 511 F.3d at 194 )

. Courts assessing eligibility under this standard routinely evaluate the relief that the complaint
reques ts in light of wha t the court actually ordered

— and have often found that , beca use FOIA plaintiffs ordinarily request relief in the form of a court order requiring production of the documents themselves , administrative orders that a court might issue to aid in its determination of whether the documents have been properly withheld ( e. g. , orders for Vaughn I ndices or statu s reports) do not give rise to a finding of eligibility for attorneys ’ fees

. See, e.g ., Campaign for Responsible Transplantation , 511 F.3d at 196 (explaining the holding in a previous D.C. Circuit case by pointing out that the district

- court order in question

— an order to conduct a search

— “was not the relief on the merits that plaintiff sought” where what plaintiff sought was “the release of13

documents”). Put another way, a court order that requires the government to pr oduce a

“ Vaughn index, without more, does not constitute court

- ordered relief for a plaintiff on the merits of its FOIA claim” because it “does not change the legal relationship between the plaintiff and defendant.” Id. at 19 6 (citation omitted) ; see als o Summers v. DOJ , 569 F.3d 500, 505 (D.C. Cir. 2009) (reasoning that court

- ordered status reports regarding certain government “voluntary disclosures” d id not effect “ a court

- ordered change in the legal relationship” between the parties, because the govern ment could “refuse[] to disclose a single document or datum” and still not be in violation of the court’s order ( internal quotation marks and citation omitted )); Barnard v. Dept. of Homeland Sec. , 656 F. Supp. 2 d 91, 9 8

– 99 (D.D.C. 2009) (holding that a court order requiring defendant either to relea se records or to prepare a Vaughn I ndex was not judicial relief on the merits, for the same reasons (citing Summers , 56 9 F.3d at 505)). These holdings foreclose Con servation Force’s characterization of th is Court’s September 2 nd order as judicial relief on the merits. As explained, Conservation
Force ’s complaint asked this Court to (1) issue an injunction forcing the government to release certain documents and (2) d eclare that Defendants had violated , and were continuing to violate, the FOIA’s statutory time limits. ( See Compl. at 12

– 13 ; see also
supra Part I.A. ) The Court’s order of September 2 , 2014 , included no such declaration,

n or did it direct a document rele ase . I nstead, the Court merely denied the government’s motion for summary judgment in part and without prejudice , on the ground s that some of the claimed exemptions were insufficiently explained to support summary judgment , and the Court permitted Defenda nts to choose between releasing the content allegedly protected by the insufficiently explained exemptions or submitting “a supplemental14

Vaughn Index and/or affidavits or declarations that comply with their obligations under [FOIA].” (September 2 Order a t 1.) Th erefore, j ust as in Summers , Defendants would not have violated the Court’s order if they had refused to produce any documents at all ,

see 569 F.3d at 505, as long as they produced a revised Vaughn I ndex or equivalent supplement to their claimed e xemptions

. 3 Moreover, if a court order to produce a Vaughn I ndex, without more, “does not constitute court

- ordered relief for a plaintiff on the merits of its FOIA claim , ” Campaign for Responsible Transplantation , 511 F.3d at 195 (citation omitted) , then neither does a co urt’s reminder to a defendant that it must either justify its exemptions sufficiently or release the requested documents

. In response to all this, Conservation Force makes only the bald statement that the September 2 nd order “[wa]s a production order.” (Pl.’s Reply at 6 (citing Elec. Privacy Info

. Ctr. v. U.S. Dep’t of Homeland Sec. , 999 F. Supp. 2d 61, 65, 67 (D.D.C. 2013 )) .) Merely saying this does not make it so . And the cited Electronic Privacy case provide s

no support for this ipse dixit eithe r, because it is clear that the court in that case was referencing the defendant’s r evised Vaughn I ndex in the context of a discussion about plaintiff’s eligibility under the catalyst method , not the court

- order analysis that is presently pertinent

. See Elec. Privacy Info

. Ctr. , 999 F. Supp. 2d at 65, 67

. As this
Court reads it , the Electronic Privacy case s ays nothing contrary to the above analysis regarding court

- ordered relief ; consequently, th is Court concludes that Conser vation Force has failed to show that it is eligib le for attorneys’ fees because it obtained relief through a court order under 5 U.S.C. § 552(a)(4)(E)(ii)(I). 4

3 Indeed, as noted in Part I.A , Defendants did not disclose any documents after or pursuant to the Court’s order; instead, they chose to update their Vaughn Index, and as Conservation Force subsequently conceded, that updated Vaughn Index passed muster. 4 In its reply brief, Conservat ion Force argues for the first time that two orders the Court issued in15

B. Conservation Force ’s Catalyst Arguments Are Insufficient To Demonstrate Eligib ility Because thi s C ourt has concluded that Conservation Force is not entitled to fees on the basis of there being any court

- ordered relief on the merits, Conservation Force can only show eligibility through the catalyst method. To recap, the catalyst analysis is all abou t causation, and it is Conservation Force’s burden to show that the necessary causal nexus exists

. S ee Dorsen , 15 F. Supp. 3d at 118 . Moreover, because “t he mere filing of the complaint and the subsequent release of the documents is insufficient to estab lish causation[,]” i d. (quoting Weisberg , 745 F.2d at 1496)), “vague assertions of post hoc, ergo propter hoc are insufficient[,]” Citizens for Responsibility and Ethics , 83 F. Supp. 3d at 297 n.5 (citing Pub. Law Educ. Inst

. v. DOJ , 744 F.2d 181, 183 (D.C

. Cir. 1984) ) ; see also Black’s Law Dictionary 1355 ( 10th ed. 2014 ) (defining post hoc ergo propter hoc as the “logical fallacy of assuming that a causal relationship exists when acts or events are merely sequential”)

. After all, if it was “unavoidable del ay accompanied by due diligence in the administrative process” that caused the agency’s failure to respond in a timely fashion to the initial FOIA request, and not the “threat of an adverse court order,” then “ it cannot be said that the complainant su bstantially prevailed in [its] suit.” Calypso Cargo Ltd. v. U.S. Coast Guard , 850 F. Supp. 2d 1, 4 (D.D.C. 2011) (alteration in original) (quoting Church of Scientology of Cal. v. Harris , 653 F.2d 584, 58 8 (D.C. Cir. 1981) ) ; see also Short v. U.S. Army Co rps of Engr’s , 613 F. Supp. 2d 103, 106 (D.D.C. 2009) (“The causation requirement is missing when

2013

— the January 3rd order to show cause why Defendants deserved a further extension of time to respond to the FOIA request and the February 19th minute order entering a briefing sc hedule

— were orders satisfying the court

- order test. But there is no colorable argument that Conservation Force obtained relief through those orders. And, in any event, new arguments made in a reply brief are forfeited, see Harrison v. Office of the Archi tect of the Capitol , 68 F. Supp. 3d 174, 183 (D.D.C. 2014), so this Court will not exercise its discretion to consider them here.16

disclosure results not from the suit but from delayed administrative processing

. ”).
This principle makes considerable sense , and it compels the outcome here. The
FOIA ’s fee provision represents a n intentional deviation from the usual rule that each party pays its own attorneys’ fees , see Union of Needletrades, Indus. & Textile Emps.,
AFL

- CIO, CLC v. U.S. I.N.S. , 336 F.3d 200, 203 (2d Cir. 2003), and Congress directed that fees may be awarded with respect to FOIA litigation to incentivize law suits that

“ facilitate citizen access to the courts to vindicate their [FOIA] statutory rights[,]” Benavides v. Bureau of Prisons , 993 F.2d 257, 260 (D.C. Cir. 1993) (citat ion omitted)

. By contrast, n o attorneys’ fee reward is due if , as it turns out, recourse to the judicial system was unnecessary . Accordingly , when determining whether a party ’s action was the catalyst for the defendant’s compliance with its FOIA obligati ons , courts “look at the circumstances surrounding disclosure[,]” Citizens for Responsibility , 83 F. Supp. 3d at 303, and consider factors “such as whether the agency made a good[

- ]faith effort to search out material and pass on whether it should be disclo sed, whether the scope of request caused delay in disclosure, and whether the agency was burdened by other duties that delayed its response [,] ” ACLU , 810 F. Supp. 2d at 274 (internal quotati on marks and citation omitted) (alt eration in original ) ; see also Dorsen , 15 F. Supp. 3d at
118

– 19

. Th is inquiry is necessarily fact

- specific. Claimants have succeeded where an agency admitted that, “[i]n the course of preparing [its] Motion for Summary Judgment[,]” it determined that th e sought

- after information could be released, months after “it had ceased its administrative processing and issued a final determination concerning [plaintiff’s] FOIA request[

. ]” Judicial Watch , 878 F. Supp. 2d at 232

– 3317

(first two alter ations in original) (internal quotation marks and citation omitted)

. Claimants were also found eligible for fees where, after the lawsuit was filed, the agency reversed course on previous exemption assertion s and provided the desired d ocuments, see Dorsen , 15 F. Supp. 3d at 115

– 16 , 119

– 20

. Conversely, the court in Calypso Cargo rejected a catalyst claim where the agency began diligently processing the FOIA request before the lawsuit but, due to “the volume of the records[,]” released

t he responsive documents some months after the complaint was filed

. 850 F. Supp. 2d
at 4

– 6 (citation omitted) (citing cases). So, too, there was no catalyst eligibility in Bigwood v. Defense Intelligence Agency , where the agency labored under a significan t backlog of FOIA requests, and “expended a considerable amount of time and effort ” processing the plaintiff’s broad request “prior to the filing of his lawsuit [.] ” 770 F. Supp. 2d 315, 321 (D.D.C. 2011) ; see also Reinbold v. Evers , 187 F.3d 348, 363 (4th Cir. 1999) (rejecting the catalyst theory’s applicability where unrebutted evidence showed that the delay in responding to a request “was caused by a staffing shortage”). At bottom, then, the question is whether hard evidence

— beyond temporal proximity

— sup ports the inference that the plaintiff’s lawsuit caused the document release or other requested relief. Such evidence is entirely absent here. Conservation Force filed the instant law suit in October of 2012 in order to obtain certain documents and partic ular declaration s from the Court

. It never obtained the latter, and while it is true that Defendants released some documents after Conservation Force filed the complaint as a purely chronological matter , it is also clear beyond cavil that the catalyst met hod requires more. N o averments or other facts in the instant record indicate that18

Defendants only produced these documents because of Conservation Force’s lawsuit or its necessary consequents , nor was there any about

- face from an initial agency refusal
h ere . Compare Dorsen , 15 F. Supp. 3d at 115

– 16. Indeed, if anything, Defendants’
release of documents substantially resembles the types of unavoidable and unintentional delay noted above

. For example, the record reflects that the FWS has “a long standin g policy of reviewing and processing requests in sequential order [,] ” (Third Decl. of Timothy Van
Norman , ECF No. 14

- 1, ¶ 4 ) , and also that, at all relevant times , the FWS had tasked only one individual with processing all FOIA requests , and that same person was also responsible for “ oversee [ing] the weekly Federal Register notice publication announcing the receipt of all Endangered Species Act applications, handling

. . . all legal file searches received by the office, and mana ging other data issues[ , ]” ( Second Van Norman Decl. ¶ 5 )

. This dynamic alone could be the cause of intractable delays in responding to FOIA requests

. But, here, there is more: the record demonstrates that after the agency beg a n to move on Conservation F orce’s FOIA request

— which indisputably occurred even before Conservation Force filed its lawsuit ( s ee id. ¶¶ 2

– 3; see also Pl.’s Mem. at 3

– 4)

— the review ’s momentum was thwarted when the agency apparently mistaken ly decided to refer the request to the Department of the Interior for processing . ( See Second Van Norman Decl. ¶¶ 5

– 6.) This decision took place in August of 2012, and was only reversed in November of 2012 , approximately one month after Conservation Force’s lawsuit was filed

. ( See id. ¶¶ 4, 6. ) Thus, n othing here suggests an intransigence that only fell away in the face of litigation ; t o the contrary,
t hese facts , which Conservation Force has not disputed , are at least susceptible to the19

view that the agency was doin g its best in a tough situation , and that the document release s in December of 2012 and January of 2013 did not result from the lawsuit but , instead, from the agency’s best efforts finally bearing fruit. Perhaps one could conceive of good arguments to support Conser vation Force’s
contention that the lawsuit prompted the agency to release the requested documents , b ut as far as motions for attorneys’ fees are concerned, plaintiffs bear this burden , and Conservation Force has barely develop ed an y catalyst argument , let alone a winning

one . In its opening brief, Conservation Force offer s only the unadorned assertion that the lawsuit “served as [ a ] ‘catalyst [,]’ ” which it then seeks to support with the lone observation that “Defendants did not respond at all to Plaintiff’ s FOIA request until after this lawsuit was filed.” (Pl.’s Mem . at 10 (emphasis in original) .) This is precisely the type of conclusory post hoc argument that precedent rejects. See Dorsen , 15 F. Supp. 3d at 118

– 19 (collecting cases)

. Conservation Forc e elaborates marginally in its reply brief

— it assert s that, but for this litigation, Conservation Force would never have received the Vaughn I ndex “or its valuable explanations” and that “ Conservation Force’s opposition to Defendants’ withholdings led to p roduction of a revised Vaughn index[.]” (Pl.’s Reply at 6

– 7 )

. E ven a ssuming arguendo that this argument is not waived, it is certainly beside the point , because t he FOIA statute does not make a plaintiff eligible for attorneys’ fees if it prevails on any dispute within a case, however small

. I nstead, plaintiffs are eligible only if they “obtain [] relief[ , ]” 5 U.S.C. § 552 (a)(4)(E)(ii), and as explained above, “ Vaughn indices are not properly understood as relief on the merits for a FOIA plaintiff

. ” Ca mpaign for Responsible Transplantation , 511 F.3d at 196 ; see also Citizens for Responsibility , 83 F. Supp. 3d at20

305 (disagreeing that defendant’s provision of “more fulsome explanations” for certain withholdings meant that plaintiff substantially prevaile d , and explaining that a “party simply does not ‘prevail’ by failing to obtain the requested records” (citations omitted)). This is also why th e Court sees no reason to address the parties’ extensive ( and misguided) discussions regarding whether or not Co nservation Force might be eligible
to recover fees with respect to particular pieces of its work within the case overall. For example, the government suggests that Conservation Force might be eligible “for attorneys’ fees . . . associated with the complai nt, proof of service and su mmons , ” but would not be eligible to recover fees with respect to the remainder of the work done by Conservation Force’s attorneys , which post

- dated the document productions of December 2012 and January 2013 , and thus could not possibly have caused those productions . ( Defs.’ Opp’n at 2 (asserting that Conservation Force is not eligible for “unsuccessful subsequent filings”) ; id. at 5; see also Pl.’s Reply at 7 (seeming to accept
this piecemeal eligibility analysis ).) This ap proach to evaluating eligibility is not based in the statute, which clearly speaks about eligibility to receive attorneys’ fees for cases , not particular pieces of work within a case. See 5 U.S.C. § 552(a)(4)(E)(i ) (stating that,
if a complainant subs tantially prevails in a case, the court “may assess . . . reasonable attorney fees and other litigation costs reaso nably incurred in [that] case ” )

. Moreover, nothing in the statute suggests that the eligibility requirement is to be es tablished based on a plaintiff’s momentary successes on interstitial issues in a case where, as here, there is no evidence that the litigation itself elicited a n event through which the plaintiff obtained relief.21

O f course, the degree to which a plain tiff deserves to recover fees for particular pieces of work is not entirely irrelevant to an attorneys’ fee motion ; it may certainly factor in to the court’s ultimate determination of whether the entire amount of fees that the plaintiff claims to have incur red in the case is reasonab le

. See, e.g. , Elec. Priv. Info. Ctr. , 999 F. Supp. 2d at 67 & n.1 (conducting the eligibility analysis and observing that “[w]hether [plaintiff] is entitled to all of its fees for work on issues for which it did not prevail is a different question ”); see also id. at 75

– 76 (addressing the fee award’s scope at the reasonableness stage and describing circumstances where partial failures within the lawsuit are grou nds for a fee reduction)

. But t he initial eligibility analysis permits no such debate ; rather, Congress w as clear that , with respect to the case as a whole, if a FOIA plaintiff obtained the relief he requested (typically , the documents themselves) “through ” either t he court

- order method or a change in agency position, h e has “substantially prevailed” and thus “may” receive

— i.e. , is eligible for

— reasonable fees incurred in that case. 5 U.S.C. § 552(a)(4)(E). And because Conservation Force has not m ade such a showing in the context of the instant case, this Court concludes that it is not eligible for an award of attorneys’ fees and costs.22

IV. CONCLUSION Conservation Force has failed to demonstrate that it substantially prevailed in the underlying action

— i.e. , that it received court

- ordered relief on the merits of its FOIA claims or that it received relief from the agency that it would not have obtained but for th e lawsuit . Therefore, it is ineligible to recover fees, and its motion for attorneys’ fees

an d costs must be DENIED

. A separate order providing accordingly will issue with this opinion.

DATE: February 5, 2016 

## Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judg e