Opinion
03 CV 6196 (GBD).
May 9, 2005
MEMORANDUM DECISION AND ORDER
Plaintiff commenced this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as amended, to enjoin defendant Commissioner of the Internal Revenue Service from withholding from plaintiff records of the Internal Revenue Service, and under the Mandamus and Venue Act of 1962, 18 U.S.C. § 1361, to compel defendant to cease tax collection activity in connection with the underlying data in the records in question. Plaintiff moves for partial summary judgment as to liability, pursuant to 5 U.S.C. § 552(a)(4)(E), in order to seek an award of attorney's fees and other costs on the grounds that plaintiff has substantially prevailed in this action. The motion is denied.
Section 1361 provides that, "[t]he district court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."
In the amended complaint, plaintiff alleged that he requested certain records from defendant, but that defendant failed to timely respond to his request. Plaintiff further alleged that after the statutory period for compliance had expired, defendant responded to his request by indicating no applicable documents existed. Plaintiff believed that there were documents which were responsive to his request which defendant had failed to provide to him. Plaintiff is seeking an order enjoining defendant from withholding all requested records and ordering the immediate disclosure of such documents to plaintiff; enjoining defendant from pursuing its collection action as it relates to the subject records; and assessing against defendant reasonable attorney's fees and other litigation costs reasonably incurred by plaintiff.
Accompanying plaintiff's motion papers was a second amended complaint. Plaintiff has not moved to amend the complaint nor did he otherwise obtained the requisite leave to amend. However, the second amended complaint does not significantly differ from the first amended complaint, and thus it plays no role with regard to the determination of plaintiff's partial summary judgment motion.
Mandamus relief does not lie to enjoin the Commissioner of the Internal Revenue Service from pursuing the agency's tax collection action against plaintiff. The Anti-Injunction Act provides that, with limited exceptions not applicable here, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person . . ." Thus, this Court lacks jurisdiction to enjoin defendant from proceeding with a tax collection action against plaintiff.Jolles Found., Inc. v. Moysey, 250 F.2d 166, 169 (2d Cir. 1957); Weisman v. Comm'r Internal Revenue Serv., 103 F.Supp.2d 621, 627 (E.D.N.Y. 2000).
After plaintiff commenced this action, defendant located the requested documents and sent them to plaintiff's counsel. Believing such actions rendered the case moot, defendant sent plaintiff's counsel a proposed stipulation and order of dismissal. As a result of plaintiff's failure to execute the stipulation, defendant filed an answer to the amended complaint asserting, as one of its defenses, that the action should be dismissed as moot. Thereafter, plaintiff filed the instant motion claiming he is entitled to an award of costs and attorney's fees.
Under FOIA, a district court has jurisdiction to enjoin an agency from withholding records and to order the agency to produce any records improperly withheld from the complainant. 5 U.S.C. § 552(a)(4)(B). The Court is empowered to assess against the United States reasonable attorney's fees and other litigation costs reasonably incurred by a complainant who has substantially prevailed in his FOIA case. 5 U.S.C. § 552(a)(4)(E).
Plaintiff maintains that he was forced to commence this action against defendant in order to compel the production of the requested documents. Plaintiff, therefore, contends that, as a result of initiating this lawsuit, he has substantially prevailed in this matter thereby entitling him to recover costs and attorney's fees. Such an argument is unavailing.
Plaintiff's motion is premised on a catalyst theory, i.e., but for the commencement of this litigation, he would not have received any records responsive to his request. The United States Supreme Court, in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), addressed the issue of whether a plaintiff was entitled to an award of attorney's fees as a "prevailing party" under the Fair Housing Amendment Act of 1988 ("FHAA") and the Americans with Disabilities Act of 1990 ("ADA"). The Buckhannon plaintiffs claimed that "they were entitled to attorney's fees under the `catalyst theory,' which posits that a plaintiff is a `prevailing party' if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Id. at 601. The Buckhannon Court rejected the catalyst theory as a proper basis to award attorney's fees under the FHAA and ADA. Id. at 610. The Supreme Court reasoned that an award of attorney's fees was inappropriate where a plaintiff had not received a judgment on the merits or a court-ordered consent decree. Id. at 605. A plaintiff must obtain judicial relief which creates a "`material alteration of the legal relationship of the parties,'" in order to be eligible to receive an award for attorney's fees. Id. at 604 (quoting Texas State Teacher's Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)). Thus, the Supreme Court found that a plaintiff who, by simply filing an action, is able to secure the desired relief sought in his complaint, without the need of obtaining judicial relief to do so, is not a "prevailing party." Id. at 605. "A defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change [of the legal relationship of the parties]." Id.
In Union of Needletrades, Industrial and Textile Employees ("UNITE") v. INS, 336 F.3d 200 (2d Cir. 2003), the Court of Appeals for the Second Circuit, relying on Buckhannon, held that a FOIA plaintiff, who was not awarded any relief by the court, was not entitled to an award of attorney's fees under the catalyst theory. The Second Circuit reasoned that although plaintiff "may have accomplished the objective [he] sought to achieve by initiating [a] FOIA action, [his] failure to secure either a judgment on the merits or a court-ordered consent decree renders [plaintiff] ineligible for an award of attorney's fees under Buckhannon," UNITE, 336 F.3d at 206. Judgment on the merits and a court-ordered consent decree are examples of judicial imprimatur necessary to obtain a fee award, but these examples do not comprise an exhaustive list. Pres. Coalition of Erie County v. Federal Transit Admin., 356 F.3d 444, 452 (2d Cir. 2004); Roberson v. Guiliani, 346 F.3d 75, 80 (2d Cir. 2003). Rather, a litigant may be found to have substantially prevailed in his action "whenever there is a court ordered change in the legal relationship between the plaintiff and the defendant or a material alteration of the legal relationship of the parties." Pres. Coalition, 346 F.3d at 80 (quotingBuckhannon, 532 U.S. at 604) (internal bracket marks and quotation marks omitted). Consistent therewith, the UNITE Court held that " Buckhannon precludes a fee award to a FOIA plaintiff whose `lawsuit did not result in a judicially sanctioned change in the legal relationship of the parties.'" UNITE, 336 F.3d at 207 (quoting N.Y. State Fed'n of Taxi Drivers, Inc. v. Westchester County Taxi Limousine Comm'n, 272 F.3d 154, 158-59 (2d Cir. 2001)); see also, Roberson, 346 F.3d at 79-80 ("Essentially, in order to be considered a `prevailing party' after Buckhannon, a plaintiff must not only achieve some material alteration of the legal relationship of the parties, but that change must also be judicially sanctioned.") (internal quotation marks and citation omitted).
In the instant case, plaintiff obtained, without Court intervention, all of the substantive relief he was seeking in his amended complaint to which he was legally entitled. No judicially sanctioned relief which affected the legal relationship of the parties was necessary in order for plaintiff to receive, from defendant, the documents he requested. Thus, plaintiff cannot be deemed to have substantially prevailed in this action. An award of attorney's fees and litigation costs is, therefore, unwarranted.
Accordingly, plaintiff's request for an award of costs and attorney's fees is denied, and the amended complaint is dismissed.
As plaintiff has already received the documents that served as the basis for initiating this lawsuit, plaintiff's motion for partial summary judgment as to liability is moot and merits no relief.
SO ORDERED: