Opinion
Civil Action No. 18-1749 (RDM)
2023-11-16
HALL & ASSOCIATES, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
Erin E. Thomas, John C. Hall, Hall & Associates, Washington, DC, for Plaintiff. Jeremy S. Simon, DOJ-USAO, Washington, DC, for Defendant.
Erin E. Thomas, John C. Hall, Hall & Associates, Washington, DC, for Plaintiff.
Jeremy S. Simon, DOJ-USAO, Washington, DC, for Defendant.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, United States District Judge.
This Freedom of Information Act ("FOIA") case is before the Court on Plaintiff Hall & Associate's ("H&A") motion for attorneys' fees and costs. Dkt. 87. Because H&A is eligible for, but not entitled to, fees and costs, the Court will DENY the motion.
I. BACKGROUND
The background of this case is entangled in the history of H&A's long-running battle with the Environmental Protection Agency ("EPA") regarding the agency's regulation of a water treatment practice known as "blending." In 2010, H&A's client, the Iowa League of Cities ("the League"), sought judicial review of the EPA's "allegedly ... new regulatory requirements for water treatment processes." Iowa League of Cities v. EPA, 711 F.3d 844, 854 (8th Cir. 2013). The Eighth Circuit dismissed that appeal for lack of
subject-matter jurisdiction because the EPA's "decisionmaking process" was not yet complete. Id. "The League," however, "continued to perceive a conflict between the agency's official written policies and the expectations it was transmitting to the state entities that served as liaisons between the EPA and municipal wastewater treatment facilities." Id. In an effort to obtain clarity, "the League enlisted the assistance of Senator Charles Grassley." Id. In response to his inquiries, the EPA sent Senator Grassley two letters, which formed the basis for the League's second approach before the Eighth Circuit. Id. That second challenge was more successful than the first, and (after addressing several threshold issues) the Eighth Circuit held, as relevant here, that: (1) the EPA's September 2011 letter to Senator Grassley "had the effect of announcing a legislative rule with respect to blending peak wet weather flows" and thus "violated the APA's procedural requirements by not using notice and comment procedures," id. at 876, and (2) the blending rule set forth in the letter "clearly exceed[ed] the EPA's statutory authority" and thus violated the APA's substantive requirements, id. at 877-78. The EPA's petition for rehearing en banc was denied on July 10, 2013, and the agency's time to petition for a writ of certiorari expired on October 8, 2013. See Hall & Assocs. v. EPA, 956 F.3d 621, 624-25 (D.C. Cir. 2020) ("Hall II").
The Eighth Circuit declined to award attorneys' fees to the League under the Clean Water Act ("CWA") because "[t]he League ... was largely vindicating its own rights, rather than the purposes of the CWA," and because the League "neglected to brief [the court] on why an award of attorneys' fees would otherwise be 'appropriate.'" Iowa League of Cities, 711 F.3d at 878 n.20.
Following the Eighth Circuit's ruling, EPA officials and employees discussed the programmatic implications of the decision and developed draft internal briefings and materials for managers considering how to respond to the decision. Dkt. 56-2 at 6-7 (Def.'s SUMF ¶¶ 23-27). By November 2013, the EPA had "issued a press release[] known as the 'Desk Statement,'" advising the public that Iowa League of Cities was legally binding within the Eighth Circuit, but that outside of that circuit, the EPA would continue to apply the regulatory interpretations that the Eighth Circuit had rejected. See Hall II, 956 F.3d at 623, 628. The Desk Statement reads as follows:
The Eighth Circuit's interpretation in Iowa League of Cities v. EPA of EPA's regulations relating to blending and bypass is legally binding within the Eighth Circuit. Outside of the Eighth Circuit, EPA will continue to work with States and communities with the goal of finding solutions that protect public health and the environment while recognizing economic constraints and feasibility concerns, consistent with the agency's existing interpretation of the regulations.
Id. at 628. All now agree that the Desk Statement reflected the EPA's "refus[al] to commit to applying Iowa League of Cities as its policy in all jurisdictions, which is all that intercircuit nonacquiescence requires." Hall & Assocs. v. EPA, 315 F. Supp. 3d 519, 536 (D.D.C. 2018) ("Hall I"), overruled on other grounds by Hall II, 956 F.3d 621; see also Hall II, 956 F.3d at 631; Ctr. for Regul. Reasonableness v. EPA, 849 F.3d 453, 454 (D.C. Cir. 2017) (remarking in another case argued by H&A that, "[b]eginning in 2013, EPA made statements indicating that it would not acquiesce in or follow the Eighth Circuit's decision outside of that circuit" and dismissing a challenge to that non-acquiescence decision). For a period of time, however, the EPA disputed that the Desk
Statement reflected a nonacquiescence policy, and H&A, for its part, has long maintained that the EPA, in fact, made its nonacquiescence decision weeks or months before it issued the Desk Statement on November 19, 2013.
In November 2014, H&A sent the EPA a FOIA request (the "November 2014 request") seeking records related to a November 2013 meeting of the Water Administrators Association, at which the Acting Assistant Administrator for Water reportedly announced that "Iowa League of Cities was not binding outside of the Eighth Circuit." Hall II, 956 F.3d at 625 (internal quotation marks omitted). In response, the EPA identified ten documents. Id. The agency released one in full and withheld the others in part or in whole under FOIA's Exemption 5. Id. at 626-27. H&A then filed an administrative appeal and subsequently brought a FOIA action in this Court. Id. at 627. In an opinion granting in part and denying in part the parties' cross-motions for summary judgment, then-Judge Jackson concluded that "the plain language" of the Desk Statement discussed above "amounted to a formal announcement of nonacquiescence." Hall I, 315 F. Supp. 3d at 535-36. The Court further held that all the material prepared before November 19, 2013, was therefore predecisional and that some of it was properly withheld pursuant to Exemption 5. Hall II, 956 F.3d at 629. Thus, by May 22, 2018—before H&A brought the present FOIA action, see Dkt. 1 at 1 (Compl. ¶ 1)— this Court had already held that the EPA had publicly announced a nonacquiescence policy on November 19, 2013, Hall I, 315 F. Supp. 3d at 519.
H&A appealed then-Judge Jackson's decision. See Hall II, 956 F.3d at 623. The focus on appeal was not on whether the Court had correctly held that the EPA had announced a nonacquiescence decision on November 19, 2023, but, rather, on whether the Court had erred in assuming that the EPA had reached its final decision on that date, as opposed to at some earlier time. Id. In other words, the question was whether this Court had erred in treating all pre-November 19, 2013, communications as predecisional when the EPA might have settled on its nonacquiesence position before then. Id.
As a starting point, the D.C. Circuit agreed—and the EPA conceded—that "a policy in which [an agency] 'refuse[s] to commit to applying Iowa League of Cities as its policy in all jurisdictions ... is all that intercircuit nonacquiescence requires.'" Id. at 631 (quoting Hall I, 315 F. Supp. 3d at 536) (second alteration in original); see also id. at 623 ("The EPA does not contest on appeal that this position [as articulated in the Desk Statement] amounted to a nonacquiescence decision."). The court then went on to hold, however, that H&A had "identified sufficient evidence to support a reasonable inference that the EPA reached its nonacquiescence position sometime before November 19th." Id. at 631 (emphasis added). As the court put it: there was a "buffet of different dates by which the nonacquiescence decision might have been adopted," id., and the record was "about as clear as mud on when the EPA finally decided to not acquiesce," id. at 633. That unresolved factual question was material, as the D.C. Circuit explained, because this Court had premised its conclusion that much of the withheld material at issue was deliberative on the assumption that communications that occurred before November 19 were necessarily predecisional. Id. at 630-31. The D.C. Circuit, accordingly, vacated this Court's decision granting partial summary judgment in favor of the EPA in Hall I and remanded the case for further proceedings. Id. at 634. Notably, the D.C. Circuit's conclusion that the Desk Statement represented the agency's public-facing articulation of a nonacquiesence policy was not based on a smoking gun document disclosed in response to H&A's FOIA request. To the contrary, the agency conceded that fact on appeal. Id. at 623. Like then-Judge Jackson, the D.C. Circuit merely recognized that the agency's public refusal to commit to following Eighth Circuit precedent outside that circuit constituted—as a matter of law—a policy of intercircuit nonacquiescence. Id. at 631-32. For that reason, the D.C. Circuit rejected H&A's efforts to overturn then-Judge Jackson's refusal to sanction the EPA for having taken a contrary legal position. Id. at 634. The court wrote:
In particular, H&A asked the Court to strike a declaration offered by the EPA on the grounds that it falsely, and in bad faith, posited that the agency had not adopted a policy of nonacquiescence. Id. at 629.
Hall argues that the district court abused its discretion in denying Hall's motion to strike one of Nagle's declarations for wrongly denying that a nonacquiescence decision had been made. Not so. The district court found that Nagle's statements that no nonacquiescence decision had been made reflected only "an earnestly held but mistaken view of the law," not a factual misrepresentation. That judgment was reasoned and well within the district court's discretion. Nothing in the law compels a district court to strike an entire declaration that includes relevant factual representations simply because the declaration also contains genuinely believed, but mistaken conclusions of law.
Id. at 634 (emphasis added) (internal citations omitted).
On remand, this Court dismissed the case as moot after the EPA released to H&A the documents that remained at issue. See Hall I, No. 15-cv-1055, Min. Entry (Sept. 5, 2020). The Court also denied H&A's motions for sanctions based on its contention that the EPA had acted in bad faith. Id. H&A's motion for attorneys' fees in that case, which seeks an award of between $1.2 and $1.5 million, remains pending. See Hall I, No. 15-cv-1055, Dkt. 101 (Pl.'s Reply in Supp. of Mot. for Award of Att'y Fees & Costs).
While the litigation regarding its 2014 FOIA request was still ongoing, H&A filed a another FOIA request (the "May 2016 request") seeking:
(1) the [November 2013] Desk Statement []; (2) records transmitting, referencing, or discussing the content and applicability of the Desk Statement; (3) records developing and discussing the Desk Statement, as well as any records demonstrating the parties involved in its development; and (4) guidance or desk statements issued by the EPA concerning post-Iowa League of Cities permitting decisions related to blending from November 2013 to 2016.
Hall & Assocs. v. EPA, 2021 WL 1226668, at *2 (D.D.C. Mar. 31, 2021) ("Hall III") (describing the history of H&A's litigation). After conducting a search, the adequacy of which H&A did not (and does not now) challenge, the EPA identified 35 documents responsive to the May 2016 request. Id. The agency then released to H&A "six documents in full and 29 documents in part, with redactions made pursuant to FOIA Exemption 5's deliberative-process and attorney-client privileges." Id. H&A did not challenge the EPA withholdings through either an administrative appeal or FOIA litigation. See Dkt. 56-2 at 2 (Def.'s SUMF ¶¶ 4-5); Dkt. 89 at 24. In December 2017, H&A filed yet another FOIA request (the "December 2017 request") —which is the request at issue in this case—and this time H&A sought the unredacted release of the 29 documents that the EPA had withheld in part in response to H&A's May 2016 request. Id. The reason for H&A's change in approach between its May 2016 request (where it did not challenge the EPA's withholdings) and its December 2017 request (where it sought the withheld materials) can, at least arguably, be traced to yet another H&A case, Center for Regulatory Reasonableness v. EPA, 849 F.3d 453 (D.C. Cir. 2017) (opinion issued Feb. 28, 2017).
Although the FOIA requests relevant to this case stop there, H&A did not—it filed yet another FOIA request in 2018 seeking still more information regarding the EPA's response to the Iowa League of Cities decision. See Hall & Assocs. v. EPA, 633 F. Supp. 3d 35, 44-45 (D.D.C. 2022) ("Hall IV"). This Court entered final judgment in that case on October 11, 2023, id., No. 19-cv-330, Dkt. 63 (Order), and subsequently granted in part and denied in part H&A's motion for an extension of time to file a petition for attorneys' fees, see id., No. 19-cv-330, Min. Order (Oct. 20, 2023).
In that case, the industry group that H&A represented asked the D.C. Circuit to declare that the EPA's "non-acquiescence statement" was unlawful. Id. at 454. The D.C. Circuit dismissed the case for want of jurisdiction, but, in setting forth the background of the dispute, observed that "[b]eginning in 2013, EPA made statements indicating that it would not acquiesce in or follow the Eighth Circuit's decision outside of that circuit." Id. at 454. Although unremarkable today, at the time the D.C. Circuit made that observation, the EPA was still maintaining that it had not made any nonacquiesence decision. (It was not until May 2018 that then-Judge Jackson rejected the EPA's position as a matter of law in Hall I, 315 F. Supp. 3d at 535, and not until October 2018 that the agency finally abandoned its position altogether in Hall II, 956 F.3d at 623.) According to H&A, it submitted its December 2017 FOIA request to the EPA "in light of the D.C. Circuit's [observation] in Ctr. For Regulatory Reasonableness v. EPA" that, beginning in 2013, the agency "made statements indicating that it would not acquiesce in or follow the Eighth Circuit's decision outside of that circuit." Dkt. 4 at 2 (Am. Compl. ¶ 2); see also Dkt. 91 at 5 (same). Against this backdrop, H&A's December 2017 FOIA request asserted that, because the EPA had "rendered a non-acquiescence decision in 2013," and because "none of [the 35] documents [that H&A was seeking] predate 2013, they may not be classified as pre-decisional or deliberative and must be released in full." Dkt. 4-2 at 2.
On January 23, 2018, the EPA denied H&A's December 2017 FOIA request for the previously withheld material, once again relying on FOIA Exemption 5 to withhold deliberative and attorney-client communications. Dkt. 4-2 at 85. This time, however, H&A filed an administrative appeal challenging the EPA's withholdings. Id. at 96-97. In its appeal, H&A invoked the dicta from Center for Regulatory Reasonableness and argued that because the "EPA rendered a non-acquiescence decision '[b]eginning in 2013'" regarding the "blending ... prohibitions vacated in... Iowa League of Cities v. EPA , ... the withheld responsive documents dated 2013 or later cannot be withheld as deliberative or attorney client" communications. Id. at 97. In response, the EPA Office of General Counsel contacted H&A and sought an extension of time. Dkt. 52-1 at 6 (Gutierrez Decl. ¶ 12). At the time, the parties were awaiting the Court's decision in Hall I, and the EPA, accordingly, requested an extension of ten business days from the issuance
of the Hall I opinion to "ensure the Agency is able to review the forthcoming opinion in the case when considering the claims raised in your appeal determination." Dkt. 52-8 at 2 (Ex. F). Notably, H&A agreed. Dkt. 52-1 at 6-7 (Gutierrez Decl. ¶ 12). On May 22, 2018, this Court issued its decision in Hall I, Dkt. 52-9 at 46 (Ex. G.), and thus the agreed upon ten-day deadline would have run on June 6, 2018. On May 29, however, H&A emailed the EPA and requested a response to its administrative appeal by June 1—five days ahead of schedule. Dkt. 52-1 at 6-7 (Gutierrez Decl. ¶ 12).
Instead of advancing the agreed-upon deadline, the EPA asked H&A to agree to extend the deadline further, until five days "after the time to appeal the Court's [Hall I] decision has expired, July 23, 2018" or, "in the event the Agency appeals the Court's determination, at the conclusion of the proceedings on appeal." Dkt. 52-11 at 5-6 (Ex. I). H&A filed a motion for reconsideration in Hall I, and, although the Court denied that motion, see Hall I, No. 15-cv-1055, Min. Order (June 18, 2018), it had the effect of extending the time to appeal from July 23 to August 17, 2018. See Dkt. 52-1 at 7 (Gutierrez Decl. ¶ 12). Before that time had run, H&A filed this lawsuit. Dkt. 1 (Compl.) (filed July 26, 2018); see also Dkt. 52-1 at 7 (Gutierrez Decl. ¶ 12).
In its complaint, H&A sought, among other things, an order compelling the EPA to disclose in full the 29 documents that were withheld in part in response to H&A's May 2016 request. Dkt. 4 at 1-2 (Am. Compl. ¶¶ 1-5). Shortly after the EPA answered, the Court set an initial scheduling conference and ordered the parties to meet and confer in advance of that conference. Min. Order (Sept. 9, 2018). Then, at the scheduling conference, the Court ordered (with the parties' agreement) that the EPA should "provide any non-exempt records to Plaintiff" by October 31, 2018. Min. Order (Oct. 10, 2018). The EPA completed its review of the documents at issue and provided its response on October 31, 2018, in which it released 20 documents in full, eight of which it had already released in full in response to H&A's May 2016 FOIA request, and twelve of which it had previously released in part. Dkt. 62-3 at 19 (Pl.'s Resp. to Def.'s SUMF ¶ 9). The EPA also released 15 documents in part, with redactions pursuant to Exemption's 5 deliberative-process and attorney-client privileges and Exemption 6. Id. On November 23, 2018, the EPA provided a supplemental response in order to narrow the issues in dispute, in which it informed H&A that it was making a discretionary release of additional portions of three documents and of one document in full. Id. (Pl.'s Resp. to Def.'s SUMF ¶ 10). Thus, as the case stood at the end of November 2018, the EPA "continue[d] to partially withhold 14 documents." Hall III, 2021 WL 1226668, at *2.
H&A asserts that the EPA's supplemental November release of documents was a "direct result" of H&A's notice of a Rule 11 sanctions motion related to the answer that the agency had filed and H&A maintained was improper. See Dkt. 87-1 at 4. But H&A points to no evidence that the agency's supplemental release in November was prompted by that collateral dispute. See generally id.
At summary judgment, H&A "challenge[d] the propriety" of the Exemption 5 withholdings in "12 of those 14 documents," and the EPA defended those withholdings. Id. (H&A did not challenge the Exemption 6 withholdings.) The 12 documents at issue were: Documents 9, 14, 21, 23, 24, 26, 27, 31, 32, 33, 34, and 35. See id. In resolving the parties' cross-motions, the Court rejected H&A's categorical contention that any document prepared after the
Desk Statement was issued on November 19, 2013, could not under any circumstances qualify as predecisional. The Court explained that H&A's proposed "all-ornothing approach" was untenable because
[t]he Court must take every document as it comes. A document may, for example, postdate the EPA's ... non-acquiescence decision but also contain deliberations on related or other matters worthy of protection. Likewise, a document may precede the EPA's alleged non-acquiescence decision, but be nondeliberative— and thus, nonexempt. Ultimately, then, irrespective of the precise timing of the EPA's non-acquiescence decision, the Court must evaluate the propriety of EPA's Exemption 5 withholdings as applied to each document and redaction.
Id. at *4. Following in camera review of the documents at issue, the Court granted summary judgment in large part in the EPA's favor. See id. at *13. In addition, the Court (1) denied summary judgment as to certain unresolved issues regarding Documents 9, 31, and 32; (2) granted summary judgment in H&A's favor as to the second withholding in Document 35 (although the Court granted summary judgment to the EPA as to the first withholding in that document); and (3) otherwise denied H&A's motion for summary judgment. Id. With respect to three documents that the EPA had "inadvertently" released to H&A in the course of responding to other FOIA requests and one document that Hall had previously received a "virtually identical version of" (Documents 21, 23, 24, and 33), the Court ordered the parties to file a status report "addressing whether the parties' dispute" over the documents "still present[ed] a live, justiciable controversy." Id. at *8, *13.
As to Document 9, the Court concluded that the EPA had failed (as the record then stood) to carry its burden with respect to four withheld portions of the document which, in the Court's view, were likely segregable. Id. at *6-7. But neither was the Court persuaded that H&A was entitled to summary judgment with respect to those four withholdings. Id. at *7. After the Court issued its ruling, however, the agency "made a discretionary release" of the handful of passages as to which the Court had sought greater clarity. Dkt. 85 at 4.
With respect to Documents 31 and 32, the Court concluded that the EPA had failed (at least as the record then stood) to carry its burden with respect to withheld portions of both documents and likewise permitted the agency an opportunity to further clarify its rationale. Hall III, 2021 WL 1226668, at *10-12. In response, the EPA provided H&A with a supplemental declaration containing additional information. Dkt. 85 at 4. H&A, in turn, withdrew its challenge to the withholdings in those two documents. See id.; Min. Order (Jan. 29, 2022); Dkt. 87-1 at 10-11.
With respect to the three inadvertently disclosed documents and the fourth document that Hall already had in his possession in substantially similar form (Documents 21, 23, 24, and 33), the Court noted that H&A had "appended these documents to [its] motion papers in this case, and [thus] the documents [were already] available for viewing by any interested member of the public." Hall III, 2021 WL 1226668, at *8. As the Court explained, "[i]n the ordinary course," the public availability of the documents at issue would moot the dispute. Id. But to address any possible uncertainty about whether the EPA might someday seek return of the inadvertently released records, the Court directed the parties to submit a joint status report within a month "addressing whether [their] dispute over Documents 21, 23, 24, and 33 still present[ed] a live, justiciable
controversy." Id. at *13. Subsequently, the EPA released the four documents in question to H&A, removing any question about whether H&A's prior possession of the documents mooted that portion of the parties' dispute. See Dkt. 85 at 3.
All told, H&A challenged the propriety of 12 documents' withholdings at summary judgment: It prevailed with respect to one sentence in one document (Document 35), and later received four portions of another document (Document 9) and copies of four documents that it already possessed and had already posted on the public docket (Documents 21, 23, 24, and 33).
After the Court had issued its summary judgment ruling, H&A indicated that it "believe[d] that it would be entirely justified in seeking a reconsideration of this Court's summary judgment decision" based on a 2021 order from the Eighth Circuit. Dkt. 85 at 1-2. On H&A's telling, the Eighth Circuit's order made "clear" that "this litigation was utilized as part of the Agency's 'scheme' to withhold [its nonacquiesence decision] from the public by improperly withholding records as predecisional and deliberative." Id. at 1. Because H&A never actually sought reconsideration, however, the Court had no occasion to consider at any length the Eighth Circuit's order. But see Hall IV, 633 F. Supp. 3d at 50 & n.2 (rejecting H&A's argument that this order provided "prima facie confirmation" of the EPA's "malfeasan[ce]" and concluding that the "Eighth Circuit's order [wa]s sufficiently disconnected from the matters" at hand "such that it d[id] not materially affect any of the issues before the Court"). But given H&A's reliance on that decision for purposes of the pending motion, the Eighth Circuit's mandamus order now merits at least brief discussion.
In the three-page order in question, the Eighth Circuit granted the League mandamus relief because the EPA had continued to "regulate blending as a prohibited bypass in the Eighth Circuit, albeit for combined sewer systems only," which constituted a "direct violation of [the court's] prior mandate." Dkt. 84-1 at 3. The Eighth Circuit observed that "[t]he EPA's sub rosa enforcement of its blending rule and its efforts to resist making its position public appear calculated so as to evade ordinary appellate review." Id. at 4 (internal quotation marks and citation omitted). That sentence, of course, refers to the agency's "sub rosa enforcement of its blending rule" within the Eighth Circuit— not, as H&A urges, to the agency's nonacquiescence decision outside of that circuit. Indeed, the Eighth Circuit denied H&A's "request for a nationwide mandate relating to its challenge of the EPA's non-acquiescence," because "[a]ll of the petitioner's members are located within the Eighth Circuit," and they, accordingly, lacked standing to seek relief outside the Eighth Circuit. Id. at 4-5.
Thus, properly construed, the Eighth Circuit order relates to the EPA's enforcement of the vacated blending rule within the Eighth Circuit, not to the agency's decision to continue enforcing its blending rule outside of that circuit. The Court can find no support in the Eighth Circuit's order—nor has H&A identified any support —for H&A's contention that the Eighth Circuit relied on the "signed declaration[s] and records released in this matter." Dkt. 87-1 at 11. In short, although
See also id. at 19 ("[A]s a Circuit Court has independently concluded that EPA undertook these withholding actions to avoid the release of records to avoid judicial review of its regulatory decisions, EPA's actions in withholding these records constitute, misfeasance if not malfeasance under FOIA, supporting a substantial award of fees for causing this unnecessary litigation to occur and for blatantly misrepresenting key facts in these proceedings." (emphases added)).
Iowa League of Cities may have been the catalyst for this litigation, H&A identifies no evidence that this litigation was the catalyst for the Eighth Circuit's mandamus order.
On January 29, 2022, the Court entered final judgment in this action within the meaning of Federal Rule of Civil Procedure 58(a). Dkt. 86. Neither party has filed a timely appeal of the Court's decision, which rejected most, but not all, of H&A's arguments on the merits. On February 4, 2022, however, H&A filed the instant motion for attorneys' fees and costs. Dkt 87. In its initial submission, H&A sought attorneys' fees and costs in the amount of $757,195.09, Dkt. 87 at 1, but it now seeks an additional $36,274.65 for the "reasonable time" it spent preparing its reply brief, for a total award of $793,469.74, Dk. 91 at 3. This amount is in addition to the $1.5 (or $1.2) million in fees that H&A seeks in Hall I, and any fees that it might subsequently seek in Hall IV.
For the reasons explained below, the Court will DENY H&A's motion.
II. LEGAL STANDARD
Pursuant to 5 U.S.C. § 552(a)(4)(E)(i), the Court "may assess... reasonable attorney fees and other litigation costs reasonably incurred" by a FOIA plaintiff who "has substantially prevailed." The test for an award of fees "has two components: eligibility and entitlement." Gerhard v. Fed. Bureau of Prisons, 258 F. Supp. 3d 159, 165 (D.D.C. 2017). "The eligibility prong asks whether a plaintiff has 'substantially prevailed' and thus 'may' receive fees." Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (quoting Jud. Watch, Inc. v. U.S. Dep't of Com., 470 F.3d 363, 368 (D.C. Cir. 2006)). "If so, the court proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees." Id. (emphasis in original). "To obtain attorneys' fees under FOIA, a plaintiff must satisfy" both prongs of the test. McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014). Moreover, if the plaintiff establishes that it is both eligible for and entitled to fees, it must then demonstrate that the award sought is "reasonable." 5 U.S.C. § 522(a)(4)(E)(i); see also EPIC v. DHS, 197 F. Supp. 3d 290, 293 (D.D.C. 2016).
III. ANALYSIS
A. Eligibility
There are two ways a plaintiff can establish that it has "substantially prevailed" and is therefore eligible for an award of fees under FOIA. First, a plaintiff substantially prevails when it secures a "judicial order, or an enforceable written agreement or consent decree." 5 U.S.C. § 552(a)(4)(E)(ii)(I); Campaign for Responsible Transplantation v. FDA, 511 F.3d 187, 193 (D.C. Cir. 2007). Scheduling orders requiring production by a date certain may qualify—even when the orders adopt timelines proposed by the agency and agreed to by the plaintiff—if entry of the order changes the legal relationship between the parties. See, e.g., Davy v. C.I.A. ("Davy I"), 456 F.3d 162, 166 (D.C. Cir. 2006); Edmonds v. FBI, 417 F.3d 1319, 1322-23 (D.C. Cir. 2005); Citizens for Resp. & Ethics v. DOJ, 820 F. Supp. 2d 39, 44 (D.D.C. 2011) (finding plaintiff substantially prevailed where the court directed defendant to produce non-exempt documents by a specified date); Am. Oversight v. DOJ, 375 F. Supp. 3d 50, 62-63 (D.D.C. 2019) (same); Urb. Air Initiative, Inc. v. EPA, 442 F. Supp. 3d 301, 312-13 (D.D.C.
2020) (same). Second, a plaintiff substantially prevails when its suit causes a "voluntary or unilateral change in position by the agency." 5 U.S.C. § 552(a)(4)(E)(ii)(II). This basis for prevailing is often referred to as the "catalyst theory." Davis v. DOJ, 610 F.3d 750, 752 (D.C. Cir. 2010).
H&A contends that it "substantially prevailed" under both theories. First, it argues that the minute entry following the initial scheduling conference, see Min. Entry (Oct. 10, 2018), constitutes a court order that altered the legal relationship between the parties because it required the EPA to release nonexempt records by a date certain. Dkt. 87-1 at 16. Second, H&A points to its partial summary judgment victory (where the Court agreed with H&A with respect to one of the two withholdings in Document 35) and the subsequent releases following summary judgment. Id. at 17. Finally, H&A argues that it caused the EPA to change its position and, in particular, that the "EPA released additional records... in direct response to H&A's [threatened] Rule 11 Motion." Id. at 16.
The Court is persuaded that H&A substantially prevailed based on the Court's minute entry mandating that the EPA release responsive records by a date certain. Because the Court concludes that H&A substantially prevailed through a court order, it need not reach H&A's alternative arguments. The October 10, 2018, minute entry in question reads:
Minute Entry for proceedings held before Judge Randolph D. Moss: Initial Scheduling Conference held on 10/10/2018. The Government shall provide any non-exempt records to Plaintiff, on or before 10/31/2018. A Status Conference is set for 11/30/2018, at 2:00 p.m., in Courtroom 21, before Judge Randolph D. Moss. Plaintiff's 9 Motion to Strike Answer to Amended Complaint is DENIED, without prejudice, for the reasons stated on the record. (Court Reporter: Jeff Hook.) (Dkt.) (Entered: 10/10/2018)
In response, the "EPA released 20 documents in full" and "15 documents in part." See Dkt. 56-2 at 2-3 (Def.'s SUMF ¶ 9); Dkt. 62-3 at 19 (Pl.'s Resp. to Def.'s SUMF ¶ 9). To be sure, given additional time, the EPA might have (and likely would have) come to this same place on its own, and it might have (and likely would have) ultimately released the same records. But obtaining a court order that compelled certain and prompt release of nonexempt records, H&A furthered the goals of FOIA—the "efficient, prompt, and full disclosure of information." Senate of the Commonwealth of P.R. on Behalf of Judiciary Comm. v. DOJ, 823 F.2d 574, 580 (D.C. Cir. 1987) (emphasis in original) (quoting Jordan v. DOJ, 591 F.2d 753, 755 (D.C. Cir. 1978) (en banc)); see also Shteynlyuger v. Ctrs. for Medicare & Medicaid Servs., 2023 WL 6389139, at *32 (D.D.C. Sept. 30, 2023).
Numerous decisions from this Court recognize that minute orders and scheduling orders requiring an agency to produce responsive documents by a date certain qualify as court orders within the meaning of 5 U.S.C. § 552(a)(4)(E)(i). See, e.g., Am. Oversight, 375 F. Supp. 3d at 63; EPIC v. DHS, 218 F. Supp. 3d 27, 39-40 (D.D.C. 2016) (collecting cases). This is true even when the scheduling order "adopts the production schedule proposed by the Government," because an order that requires an agency to release records by a date certain "changes the legal relationship between the parties." Id. at 39. Significantly, "prior to the order, the agency '[is] not under any judicial direction to produce documents by specific dates,' whereas after the order, the agency must do so or be subject to the sanction of contempt." Id. (quoting Jud. Watch, Inc. v. F.B.I., 522
F.3d 364, 368 (D.C.Cir. 2008)). As a result, the fact that the Court ordered the EPA to do something that it had volunteered to do at the scheduling conference is, despite the EPA's arguments to the contrary, "irrelevant." Reyes v. U.S. Nat'l Archives & Rec. Admin., 356 F. Supp. 3d 155, 162 (D.D.C. 2018).
That leaves the question of whether it makes a difference that the Court's direction that the EPA release the nonexempt records by a date certain was reflected in a "minute entry," rather than a "minute order." To be sure, some of the relevant precedent relies on the fact that a minute order contains mandatory language, is labelled "order," and bears the signature of a judge. See Am. Oversight, 375 F. Supp. 3d at 63 (citing Davy I, 456 F.3d at 166). Those distinctions might make a difference under some circumstances. But, here, the "minute entry" contained mandatory language, and, of critical importance, it was that language—and not the title of the docket entry—that altered the legal relationship with the parties. Had the EPA ignored the Court's direction, it would have been no defense to invoke the formalistic distinction between minute orders and minute entries. But, even more importantly, a minute entry is simply the courtroom deputy's record of the order or orders the presiding judge pronounced from the bench. An order delivered by the judge, and recorded by the clerk on the docket, is no less binding than an order entered in a written opinion or on the docket with the judge's signature. That is all that matters for present purposes. See id. (referring without comment to minute orders and minute entries as "[b]oth" giving "rise to a 'judicially sanctioned change in the legal relationship between the parties' by introducing 'judicial direction to produce documents by specific dates'" (quoting Davy I, 456 F.3d at 166)).
Finally, the minute entry at issue here resulted in H&A receiving the vast majority of the relief that it ultimately obtained. Indeed, as discussed above, in the Court's summary judgment decision, H&A prevailed with respect to only one sentence in one document. And although the EPA did release some additional withholdings following the Court's summary judgment decision, most of what H&A received occurred during the early days of the litigation. In other words, the relief that H&A obtained, as reflected in the minute entry, was substantial—and not merely peripheral or de minimis.
The Court, accordingly, finds that H&A substantially prevailed and is eligible for fees.
B. Entitlement
Although H&A is eligible for fees, it is not entitled to them. In deciding whether a FOIA plaintiff is entitled to fees and costs, the Court must weigh four factors: "'(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding' of the requested documents." McKinley, 739 F.3d at 710 (quoting Tax Analysts v. DOJ, 965 F.2d 1092, 1093 (D.C. Cir. 1992), superseded by statute as recognized in Summers v. DOJ, 569 F.3d 500 (D.C. Cir. 2009)). "[T]he first three factors assist a court in distinguishing between requesters who seek documents for public informational purposes and those who seek documents for private advantage." Davy v. CIA, 550 F.3d 1155, 1160 (D.C. Cir. 2008) ("Davy II"). The fourth factor, in contrast, considers whether the agency's position "had a reasonable basis in law," Tax Analysts, 965 F.2d at 1096, and asks whether the agency was "recalcitrant in its opposition to a valid claim or otherwise engaged
in obdurate behavior," McKinley, 739 F.3d at 712 (internal quotation marks omitted). The Court takes each factor in turn, combining factors two and three as courts typically do. Id. at 711.
1. Factor 1
To assess the public benefit derived from the case, a court must determine whether the lawsuit "is likely to add to the fund of information that citizens may use in making vital political choices." Davy II, 550 F.3d at 1164 (Tatel, J., concurring) (quoting Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995) (internal quotation marks omitted)). In Morley v. CIA, 810 F.3d 841, 844 (D.C. Cir. 2016), the D.C. Circuit clarified, "[l]est there be any uncertainty," that "the public-benefit factor requires an ex ante assessment of the potential public value of the information requested, with little or no regard to whether any documents supplied prove to advance the public interest.... [I]f it's plausible ex ante that a request has a decent chance of yielding a public benefit, the public-benefit analysis ends there." Thus, the question is whether there was "a decent chance" that H&A's December 2017 request would "generat[e] useful new information about a matter of public concern." Id. Here, the answer to that question is "perhaps"—but, if so, just barely.
In its May 2016 FOIA request, H&A sought: (1) the November 19, 2013, Desk Statement; (2) records "transmitting, referencing, or discussing" the content and applicability of the Desk Statement; (3) records developing the Desk Statement; and (4) records pertaining to how EPA Regional Offices should address or discuss post-Iowa League of Cities National Pollutant Discharge Elimination System ("NPDES") permits. Hall III, 2021 WL 1226668, at *2; Dkt. 62-3 at 17-18 (Pl.'s Resp. to Def's SUMF ¶ 3). In its December 2017 FOIA request, H&A sought the unredacted release of the 29 documents that the EPA partially withheld in response to the May 2016 request. The best ex ante assessment of what H&A sought to achieve with its FOIA request is found in its amended complaint, where H&A alleged that the December 2017 FOIA request "was submitted for the benefit of and on behalf of H&A's municipal clients who were still being informed that designing or operating a wastewater facility to blend peak flow constituted a violation of the federal bypass regulation." Dkt. 4 at 2 (Am. Compl. ¶ 3); see also Dkt. 87-1 at 26-28. H&A's amended complaint further alleged that the records at issue "contain[ed] the 'working law' of the Agency and internal directives to the Regional Offices governing NPDES program implementation" and that H&A sought "to unearth whether the Agency was ... implementing secret law." Dkt. 4 at 2-3 (Am. Compl. ¶ 3).
The first question the Court must consider is whether, by requiring an ex ante assessment, the D.C. Circuit means that the Court should consider the state of affairs when the FOIA applicant submitted its request to the agency or the state of affairs when it brought suit. As noted above, Morley holds that "the public-benefit factor requires an ex ante assessment of the potential public value of the information requested," 810 F.3d at 844, but it does not specify whether that assessment considers the public benefit at the time the FOIA request was submitted to the agency or at the time the plaintiff brought suit seeking to compel compliance with that FOIA request. Other D.C. Circuit precedent and common sense, however, suggest that the Court must assess the potential public benefit at the time the litigation was initiated. Afterall, "[t]he purpose of this inquiry is obvious: Congress meant to incentivize the pursuit of public informational interests" by permitting the recovery of
the cost of bringing suit, and "[b]efore suing, requesters [typically] have no idea what documents responsive to their FOIA requests might contain because the agency has told them nothing." Davy II, 550 F.3d at 1164 (Tatel, J., concurring) (emphasis added). In other words, the question is whether the possibility of recovering fees is needed to incentivize FOIA requesters to pursue litigation that is in the public interest. That inquiry turns on the facts as they existed—and as they were known to the FOIA requester and other members of the public—at the time the FOIA requester faced the decision of whether to bring suit.
Here, by the time H&A brought this suit, the D.C. Circuit had already observed, albeit in dicta, that the EPA had "made statements indicating that it would not acquiesce in or follow the Eighth Circuit's decision outside that circuit," Ctr. for Regul. Reasonableness, 849 F.3d at 454, and, more importantly, then-Judge Jackson had already held, as a matter of law, that the EPA's November 19, 2013 Desk Statement constituted a policy of "intercircuit nonacquiescence," Hall I, 315 F. Supp. 3d at 536. Notably, H&A's December 2017 FOIA request embraced this view, arguing that "[t]he D.C. Circuit Court [had] found that EPA rendered a non-acquiescence decision in 2013" and that because the records it sought did not "predate" that decision, "they may not be classified as predecisional or deliberative and must be released in full." Dkt. 4-2 at 2. If follows that, unlike in some of its other FOIA cases, H&A cannot plausibly argue that it brought this case to advance the public interest in discovering whether the EPA had adopted a secret policy of not acquiescing in the Eighth Circuit's decision outside that circuit—or even in order to put the lie to the EPA's claim to the contrary.
H&A seems to recognize as much and, thus, rather than focusing on the public benefit of revealing a secret nonacquiescence policy, it asserts, more generally, that there "was a significant public interest in uncovering the internal Headquarters directive instructing Regional Offices on how to interpret the bypass regulation relating to blending" after Iowa League of Cities. Dkt. 87-1 at 26. As H&A explains its position, municipal water authorities were interested in this information to determine "how to design and [to] operate wastewater treatment plants in conformance with the Clean Water Act." Id. And H&A argues that "the public interest prong [is] satisfied where the release of records 'air[ed] out possible evidence of Government misconduct.'" Id. at 26-27 (alteration in original) (quoting Piper v. DOJ, 339 F. Supp. 2d 13, 20 (D.D.C. 2004)).
The Court starts with H&A's final argument because it is so easily dispatched. Simply put, H&A identifies no plausible basis to believe that its December 2017 FOIA request might uncover government misconduct of any kind. When H&A made a different allegation of misconduct in Hall I, the Court made equally short shrift of it, holding that there was no evidence of bad faith and that the EPA had "simply failed to appreciate that the sentiment conveyed in the Desk Statement ... count[ed] as a nonacquiescence determination." 315 F. Supp. 3d at 545. As the Court recognized, "an earnestly held but mistaken view of the law" does not evince bad faith. Id. On appeal, the D.C. Circuit opined that this finding was not only sound but consistent with the principle that "[n]othing in the law compels a district court to strike an entire declaration" (the sanction that H&A sought) merely because it "contains genuinely believed, but mistaken conclusions of law." Hall II, 956 F.3d at 634. Here, if anything, there is even less basis for H&A's suggestion that the 29 records at
issue reveal evidence of possible government misconduct or that the EPA withheld portions of those records to conceal any such wrongdoing.
H&A comes slightly closer to the mark in arguing that the EPA's internal discussions and communications with other regulators (regarding its post-Iowa League of Cities approach to bypass regulation relating to blending) was a matter of public interest. In considering that question, however, the Court must first step back and consider what H&A had already received in response to its May 2016 FOIA request and from records that the EPA inadvertently released in 2016 and which H&A attached to its motion for summary judgment. Dkt. 63-2 at 58-69; see also Dkt. 68-2 at 4 (Suppl. Kloss Decl. ¶ 8). In reviewing what was at stake, moreover, the Court once again looks to the relevant circumstances on July 26, 2018, when H&A brought this suit. Dkt. 1 (Compl.).
By the time H&A brought suit, it already possessed unredacted copies of Documents 21, 23, 24, and 33. It had also already received, through the EPA's response to H&A's May 2016 FOIA request, unredacted copies of the letter of the Acting Assistant Administrator for Water to the Conference of Mayors, the National League of Cities, the National Association of Development Organizations, the International Municipal Lawyers Association, and the National Association of Clean Water Agencies. Dkt. 93-1 at 10-20 (Document 2) (collecting letters). That letter explained that Iowa League of Cities constituted binding precedent only in the Eighth Circuit and that the EPA's bypass regulation, 4 C.F.R. § 122.41, remained in force. Id. Furthermore, H&A could discern from the material released in response to the May 2016 FOIA request that many of the redactions were either modest (often a sentence or two) or simply agenda items for discussion, rather than statements of existing policy or "secret law." See, e.g., id. at 9 (Document 1), 26-27 (Document 7), 48 (Document 19). The more substantial redactions, moreover, were on their face either likely deliberative (e.g., "Potential or Expected Policy") or brief updates regarding specific permit applications (e.g., "NPDES Coal Mining KY—Permit Objections: Nothing new to report as of Nov. 22 (Tyler)."). Id. at 30 (Document 9).
Although the Court considers the public interest prong ex ante, the ultimate results of this litigation confirm that little was at stake. The sole sentence (from Document 35) that the EPA was compelled to disclose in the Court's summary judgment opinion, for example, reads as follows: "We have continued our discussion with Region 7 about KS potentially issuing a permit that approves a bypass for a wet weather treatment unit at a facility in Johnson County KS." Compare Dkt. 93-2 at 72, with Dkt. 93-1 at 81.
That said, the Court recognizes that there was a "decent chance" that the litigation might reveal at least some information of marginal public interest. See Morley, 810 F.3d at 844. As noted above, there was no reason to believe that the redacted material would disclose government misconduct or would shed light on an agency practice of broad public interest, such as a practice of avoiding notice and comment rulemaking and applying "secret law" to regulated entities. But, to the extent successful, H&A's lawsuit offered the prospect of revealing snippets about the thinking of EPA officials and employees regarding a highly technical issues —the regulation of blending "on a case-by-case [basis] ... in particular communities outside" the Eighth Circuit. Hall II, 956 F.3d at 625 (internal quotation marks omitted). Any insight (or glimmer of an insight) regarding that question was
undoubtedly of interest to H&A's municipal water treatment clients.
It is unclear, however, how far that prospect advances H&A's motion for fees. On the one hand, the D.C. Circuit and this Court have held that the "particularized nature" of the information sought, especially where that information primarily benefits the requester or similarly situated individuals, counsels against a finding of public benefit. See Urb. Air Initiative, 442 F. Supp. 3d at 315 (collecting cases); Fenster v. Brown, 617 F.2d 740, 744-45 (D.C.Cir. 1979) (release of Defense Contract Audit Manual primarily helps government contractors with audits of their performance by the government and does not further general public interest); Horse-head Indus., Inc. v. EPA, 999 F. Supp. 59, 79 (D.D.C. 1998) (court found likelihood that records would actually be disseminated to the public speculative and benefit "minimal" after plaintiff, thought by EPA to have contaminated a particular Superfund site, requested data on hazardous substances found at that site). But, on the other hand, those cases are at least arguably distinguishable because, in this case, many or all the regulated water treatment facilities at issue are public or municipal entities. This raises at least the possibility that the broader communities in which these facilities were situated might have had an interest in the financial and regulatory burdens that the water processing facilities were facing.
Despite this possibility, the Court remains skeptical that, when H&A brought this suit, there was a "decent chance" that the FOIA request at issue in the case would generate any new information of material public interest. Morley, 810 F.3d at 844. At its core, this case remains one in which the information sought was primarily (and perhaps only) of interest to a limited audience (principally H&A's clients and their peers), and even as to that narrow audience, the litigation was unlikely to reveal more than passing (and acontextual) glimpses into the thinking of regulators during a short period of time that occurred long before H&A submitted its FOIA request (and even longer before H&A brought this suit).
H&A makes three arguments to the contrary. See Dkt. 87-1 at 26. It argues that the information it sought was of public value because of (1) the "extreme economic impact" associated with the EPA's "secret" decision not to acquiesce outside of the Eighth Circuit—that is, the economic cost of the EPA's continued application of its pre-Iowa League of Cities approach to blending; (2) "the Eighth Circuit's reliance on records from this litigation in issuing injunctive relief against the Agency to prevent ultra vires action"; and (3) the fact that the EPA's "actions in processing this response were violations of FOIA, the CWA (public input [] rule), and the APA ([] notice and comment on all rules)." Id. at 27. None of these arguments withstands scrutiny.
H&A's second and third arguments merit only brief response. With respect to the second argument, the Court has already explained that the Eighth Circuit's mandamus order is of limited relevance outside of that circuit, as the Eighth Circuit itself concluded in declining to issue a nationwide injunction. Moreover, although H&A claims that its success in obtaining mandamus relief from the Eighth Circuit turned, at least in part, on information that it obtained in this litigation, it offers no support for that claim; it fails to identify which previously withheld record, revealed as a result of this litigation, convinced the Eighth Circuit that the EPA was acting in "direct violation of [the court's] prior mandate." Dkt. 84-1 at 3. Further, using FOIA as a substitute for discovery against the
government is a private interest, as discussed below, that weighs against an award of attorneys' fees. See, e.g., Baldrige v. Shapiro, 455 U.S. 345, 360 n.14, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) ("The primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for civil discovery.").
H&A's third argument, see Dkt. 87-1 at 29, is too conclusory to permit a meaningful response. To the extent H&A argues that it is entitled to an award of fees because the EPA "violat[ed] ... FOIA," that contention proves too much; not every prevailing party in a FOIA case is entitled to an award of attorneys' fees, and, here, the Court has no reason to believe that the EPA acted in bad faith or so unreasonably that an award of fees is warranted. And, to the extent H&A intends to argue that the Court should award fees here because the EPA allegedly violated the Clean Water Act or the Administrative Procedure Act, as adjudicated in a different case in a different circuit, it offers no support for that novel proposition. H&A's argument is even more striking because the Eighth Circuit itself declined to grant H&A's fee request in Iowa League of Cities. See 711 F.3d at 878 n.20.
H&A's first argument likewise does little to move the needle. In H&A's view, the public interest prong weighs in favor of an award of fees because "of the extreme economic impact" that the EPA's approach to blending has had on water treatment facilities around the country. Dkt. 87-1 at 27. As noted above, the Court does not doubt that at least some public water treatment facilities and municipalities have a keen interest in the EPA's approach to blending as prohibited bypass. But, as noted, that interest is limited to a discrete audience, and "there is little evidence that there is a large interested group" or that H&A has "disseminate[d] the disclosed information to the allegedly interested public." United Am. Fin., Inc. v. Potter, 770 F. Supp. 2d 252, 256 (D.D.C. 2011), aff'd sub. nom. United Am. Fin., Inc. v. Donahoe, 464 F. App'x 6 (D.C. Cir. 2012).
The Court, accordingly, finds that the public-interest factor is neutral or, at most, weighs only slightly in favor of the award of fees.
2. Factors 2 & 3
The second and third factors— the commercial benefit to the plaintiff and the nature of the plaintiff's interests in the records requested—"are closely related and often considered together." Tax Analysts, 965 F.2d at 1095. Under these factors, the requesting party's "motive need not be strictly commercial" to cut against an award of attorneys' fees—"any private interest will do." Id. The first three factors under the FOIA attorneys' fees analysis are similar to the extent that they both "assist a court in distinguishing between requesters who seek documents for public informational purposes and those who seek documents for private advantage." Davy II, 550 F.3d at 1160. Considered together, "the functional inquiry under these factors is to assess the probability that the complainant had sufficient private incentive and means to seek disclosure of the records regardless of the availability of fees." Horsehead Indus. Inc., 999 F. Supp. at 69. An attorneys' fees award should not subsidize a matter of private or commercial concern at taxpayer expense. Here, the Court finds that H&A had sufficient private incentives and means to bring this litigation, without the prospect of fees on the other end. Accordingly, for many of the reasons just discussed, the Court concludes that both Factors 2 and 3 strongly weigh against awarding H&A fees.
The Court finds, just as other decisions from this Court have previously
found, that H&A had a commercial, private interest in this litigation. See Hall & Assocs. v. EPA, 2011 WL 13373978, at *4 (D.D.C. Nov. 4, 2011) (magistrate's recommendation) ("Hall had a commercial, private interest in providing its clients with updates regarding EPA policy."); Hall & Assocs. v. EPA, 2016 WL 10746643, at *4 (D.D.C. Mar. 7, 2016) ("Although there is public value to the information sought by the plaintiff's FOIA request, the impetus behind the request was purely personal."). As those decisions recognized, H&A is a private law firm, with municipal clients that are regulated entities engaged in the treatment of wastewater. Compare Hall & Assocs., 2011 WL 13373978, at *4, with Dkt. 4 at 4 (Am. Compl. ¶ 9); see also Hall & Assocs., 2016 WL 10746643, at *4 ("The plaintiff's FOIA request was motivated by the City's September 2014 meeting ... concerning the proposed NPDES permit."). Here, as in other FOIA cases, H&A issued the FOIA request in its own name. Compare Hall & Assocs., 2011 WL 13373978, at *4, and Hall & Assocs., 2016 WL 10746643, at *1, with Dkt. 87-1 at 30; Dkt. 4-2 at 2-3. And here, from inception through the instant motion, H&A has stressed that it made this FOIA request and brought this lawsuit "for the benefit of and on behalf of H&A's municipal clients." Dkt. 4 at 2 (Am. Compl. ¶ 3); see Dkt. 63-3 at 12 (Pl.'s SUMF ¶ 82) ("The FOIA request was submitted on behalf of H&A's municipal clients that have been and continue to be adversely affected by EPA's policy on blending outside the Eighth Circuit."); Dkt. 87-1 at 26 ("H&A submitted this FOIA request on behalf of multiple municipalities affected by the blending issue and EPA's (illegal) regulation of peak flow management."). "FOIA suits which are motivated by scholarly, journalistic, or public interest concerns are the proper recipients of fee awards." Alliance for Responsible CFC Policy, Inc. v. Costle, 631 F. Supp. 1469, 1471 (D.D.C. 1986). Except in unusual circumstances, cases like this one, which are brought by private law firms on behalf of their clients to obtain discovery for use in other litigation, are not.
In response, H&A argues that the "vast majority of [its] efforts were done pro bono and H&A only received minimal compensation from its municipal clients regarding the work done to successfully litigate this matter." Dkt. 87-1 at 30. H&A is correct that Factors 2 and 3 are, at times, accorded less weight when a case is brought pro bono, even for a private interest. See Reyes v. U.S. Nat. Archives & Records Admin., 356 F. Supp. 3d 155, 166 (D.D.C. 2018). But this case does not fit that model for at least three reasons: First, H&A does not maintain that it went wholly unpaid for its efforts; it says only that the "vast majority" of its efforts were pro bono, and it fails to offer any evidence quantifying that assessment. Second, there is little doubt that this case served H&A's business interests; by litigating this and other FOIA challenges, H&A served its own interest in attracting and retaining clients interested in challenging the EPA's approach to regulating blending as prohibited bypass. Third, the ultimate purpose of the entitlement inquiry is to determine whether the incentive of recovering attorneys' fees serves the purposes of FOIA, and where FOIA requesters have sufficient, private incentives to bring suit without
See Dkt. 4 at 4 (Am. Compl. ¶ 9) ("Plaintiff, H&A, is a Professional Limited Liability Company.... H&A's primary purpose is to serve as a regulatory consultant and/or special counsel to municipal and private entities regarding environmental matters."); Hall & Assocs. v. EPA, 14 F. Supp. 3d 1, 4 (D.D.C. 2014) ("Plaintiff Hall & Associates, a consulting group that believes EPA has been too stringent, filed eighteen FOIA requests....").
the prospect of receiving fees, it is inappropriate to burden the public fisc.
As Magistrate Judge Kay explained twelve years ago:
Hall admits that it requested the information to properly inform its clients of their Clean Water Act responsibilities. Like the firm's motivation in Fenster, Hall's attempt to garner goodwill among its current clients is financially based, even if indirectly. Hall's actions are analogous to those of an accountant who, in the run-up to April 15th, sends his clients information about changes in the tax code hoping the clients will continue to use the accountant to assemble their tax filings. Hall's FOIA request was filed to gain access to the most up-todate information regarding the EPA's policy toward blending and pass that information on to its clients, a purpose that is both commercial and private.
Hall & Assocs., 2011 WL 13373978, at *4 (internal citations omitted). For similar reasons, to the extent H&A used its FOIA request in this case in an effort to obtain information to use in pending (or future) litigation brought on behalf of its clients, the award of fees is both unnecessary and at odds with precedent holding that "[t]he primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for civil discovery." Baldrige, 455 U.S. at 360 n.14, 102 S.Ct. 1103; see also Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704, 712 (D.C.Cir. 1977).
The Court, accordingly, finds that H&A brought this suit to further its own commercial and parochial interests and concludes that Factors 2 and 3 therefore weigh against awarding fees.
3. Factor 4
Finally, Factor 4 "evaluates why the agency initially withheld the records." Morley v. CIA, 894 F.3d 389, 392 (D.C. Cir. 2018) (emphasis added). It requires the Court to evaluate whether the EPA "had a reasonable basis in law" for opposing disclosure and whether the EPA was "recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior." McKinley, 739 F.3d at 712 (internal citations omitted). "The question is not whether [the plaintiff] has affirmatively shown that the agency was unreasonable, but rather whether the agency has shown that it had any colorable or reasonable basis for not disclosing the material until after [the plaintiff] filed suit." Davy II, 550 F.3d at 1163; see also Am. Immigr. Council v. DHS, 82 F. Supp. 3d 396, 407 (D.D.C. 2015); Judicial Watch, Inc. v. DOJ, 878 F. Supp. 2d 225, 237 (D.D.C. 2012). "If the Government's position" in declining to release the records at issue is "correct as a matter of law, that will be dispositive. If the Government's position is founded on a colorable basis in law," however, "that will be weighed along with other relevant considerations in the entitlement calculus." Chesapeake Bay Found., Inc. v. U.S. Dep't of Agric., 11 F.3d 211, 216 (D.C. Cir. 1993). While the first three factors incentivize FOIA requesters to pursue related litigation that is in the public interest, the fourth factor "incentiviz[es] the government to promptly turn over—before litigation is required— any documents that it ought not withhold." Davy II, 550 F.3d at 1166 (Tatel, J., concurring). At the same time, however, agencies should not be penalized for—or disincentivized from—voluntarily releasing records at the outset of a litigation when the agency might reasonably have withheld the records. See Dorsen v. SEC, 15 F. Supp. 3d 112, 124-25 (D.D.C. 2014). The agency bears the burden of showing "that it had [a] colorable or reasonable
basis for not disclosing the material" at issue. Davy II, 550 F.3d at 1163.
Because the documents at issue in this litigation were released in two waves, the Court considers each wave separately. The first wave of disclosures consists of releases that the EPA made at the start of the litigation, in October and November of 2018, not long after H&A filed its complaint and just weeks after the initial scheduling conference. See Min. Entry (Oct. 10, 2018). As detailed above, the bulk of the new information that H&A received as a result of its December 2017 FOIA request came in the first wave. See Hall III, 2021 WL 1226668, at *2. The second wave included the releases that resulted, directly or indirectly, from this Court's summary judgment decision. Those disclosures were, as explained above, minimal. Most notably, the Court ordered the EPA to release a single sentence in Document 35, and, after the Court issued its ruling, the EPA elected to release four withheld portions of Document 9 and released Documents 21, 23, 24, and 33, which H&A already had in its possession (and, indeed, had attached to its motion for summary judgment).
With respect to the first wave, the Court finds that the agency was neither obdurate nor recalcitrant in failing to make its releases more promptly—that is, at some point between June 2018, when the agreed-upon extension of time for resolving H&A's administrative appeal expired, Dkt. 52-1 at 2 (Gutierrez Decl. ¶ 12), and October/November 2018, when the EPA made the releases to H&A. This case presents an unusual context for applying the fourth factor and requires the Court to delve into the twists and turns that led to where we are. As explained above, the FOIA request at issue here was the second time that H&A requested precisely the same records. After H&A requested these records in May 2016, and after the EPA released 35 records (six in full and 29 with redactions), H&A declined to file an administrative appeal or a lawsuit challenging the EPA's withholdings. In December of 2017, H&A submitted the same request a second time, on its telling, because of the D.C. Circuit's intervening decision in Center for Regulatory Reasonableness, where the court observed that "[b]eginning in 2013, EPA made statements indicating that it would not acquiesce in or follow the Eighth Circuit's decision outside of that circuit." 849 F.3d at 454. H&A invoked that dicta in its December 2017 FOIA request, arguing that "[i]n light of the recent D.C. Circuit decision," the EPA could no longer sustain any of its withholdings "as pre-decisional or deliberative," and, accordingly, the agency needed to release the records "in full." Dkt. 4-2 at 2.
Recall, however, that at the time H&A submitted its December 2017 FOIA request it was still actively litigating Hall I, where the parties disputed whether the EPA had, in fact, made an intercircuit nonacquiescence decision at all, much less before November 19, 2013. See Hall I, 315 F. Supp. 3d at 519 (decided May 22, 2018). Recall as well that H&A had agreed to extend the time for the EPA to decide its administrative appeal until after the Court decided Hall I, based on the understanding that the Court's decision in that case might cast light on the propriety of the agency's withholdings. Dkt. 52-1 at 6 (Gutierrez Decl. ¶ 12). And recall also that it was not until Hall I was decided, and H&A appealed that decision, that the EPA conceded that its November 19, 2013 Desk Statement reflected a decision not to acquiesce in Iowa League of Cities outside of the Eighth Circuit. See Hall II, 956 F.3d at 623.
Against this backdrop, it is difficult to fault the EPA for, at first, requesting that
H&A consent to hold its administrative appeal in abeyance until the window to appeal Hall I had closed (in essence, continuing the parties' prior agreement to await judicial guidance), and then, after H&A declined, taking roughly five months to make its first wave of releases. Indeed, to the EPA's credit, it made the bulk of its releases in this case within a few weeks of the Court's initial scheduling conference. The time that the EPA took to come to that decision, moreover, must be viewed in light of (1) H&A's insistence (even if ultimately incorrect) that the propriety of the withholdings turned, exclusively, on the precise timing of the EPA's nonacquiescence decision; (2) the fact that Hall II, the D.C. Circuit appeal of Hall I, which H&A filed shortly after bringing suit in this case, promised to resolve that very question; and (3) the fact that the EPA had yet to concede that the Desk Statement constituted a policy of intercircuit nonacquiescence. Notably, the EPA filed a brief in the D.C. Circuit—in which it first elected "not [to] contest ... that [the Desk Statement] position amounted to a nonacquiescence decision," Hall II, 956 F.3d at 623—on the very same day that it released the first wave of material in this case, see Hall II, No. 18-5241 (D.C. Cir.), Dkt. 1758074 at 1-3 (Opp'n to Pl.-Appellant's Mot. for Summ. Reversal) (filed Oct. 31, 2018); Dkt. 62-3 at 19 (Pl.'s Resp. to Def.'s SUMF ¶ 9). As that timing suggests, the question before the EPA was not merely what position to take with respect to the withholdings in this case but, in addition, what position to take before the D.C. Circuit —and confessing (even partial) error on appeal presumably requires multiple layers of agency and Department of Justice input and review.
In assessing the EPA's five month delay in releasing records, it also bears repeating that then-Judge Jackson found that the agency's view was an "earnestly held," albeit "mistaken[,] view of the law." Hall I, 315 F. Supp. 3d at 545; see also Hall II, 956 F.3d at 634 (upholding that decision). But, even more importantly, unlike some of H&A's other FOIA cases, most of the delay at issue in this case had little or nothing to do with the merits of the EPA's position in Hall I and whether the EPA's "earnestly held" "view of the law" was reasonable. Rather, H&A itself agreed that this case was tied to Hall I and itself agreed to wait until this Court issued its decision in Hall I. Nor was the relatively modest delay that occurred after Hall I was decided a product of the agency's recalcitrant insistence that it had not reached a nonacquiescence decision; to the contrary, in its first substantive filing in the D.C. Circuit, the EPA conceded the point and, that very day, the agency made its first release of records in this case. During the period of time from June to October/November 2018, moreover, the EPA explained its position to H&A and explicitly drew a connection between this case and any appeal of the Court's decision in Hall I. This case, accordingly, differs from the garden-variety case of delay, in which judges of this Court have held that the fourth factor tips in favor of attorneys' fees. See, e.g., Reyes, 356 F. Supp. 3d at 167-68 (fourth factor weighed in favor of fees where the agency did not "notify [p]laintiff as to whether or not the agency would comply with the request" and did not seek any extension of time to respond); EPIC v. DHS, 811 F. Supp. 2d 216 (D.D.C. 2011) (fourth factor weighed in favor of fees where the agency did not provide plaintiff with any information concerning the status of its FOIA requests and at no point informed plaintiff of an administrative backlog or sought an extension of time to respond).
Finally, the EPA's delay from June to October/November 2018 was all the more
understandable because, despite H&A's insistence to the contrary, the applicability of Exemption 5 to the records at issue here did not turn exclusively on the date when the agency decided not to acquiesce in the Eighth Circuit's decision. As the records at issue demonstrate, even after the EPA had decided not to acquiesce, it continued to consider precisely how to regulate blending outside of the Eighth Circuit and how to communicate its position to the public. See, e.g., Dkt. 93-1 at 9-22 (Documents 1-5), 26 (Document 7), 36-40 (Documents 11-15), 70 (Document 29). To be sure, the EPA's decision to release at least some of these records in October/November 2018 was likely motivated by the agency's new-found recognition (or at least acceptance) that the Desk Statement constituted a nonacquiesence decision, but, as this Court's summary judgment decision demonstrates, more was at stake; simply put, H&A's contention that all communications or records relating to blending that were created after the agency's nonacquiescence decision were, "by definition," "not predecisional," swept far too broadly. Hall III, 2021 WL 1226668, at *4.
Communications that merely convey a decision already made are, of course, post-decisional. But agency deliberations can, and often do, continue after an initial decision is made, and include, for example, decisions about how to communicate or to apply that decision or decisions about how to apply related rules or policies. Id. at *4-13. Here, many of the records that the EPA voluntarily released in the first wave at least arguably fall within that ambit, and the agency should not be penalized for releasing records that it might reasonably have sought to protect in litigation. See, e.g., Dkt. 93-2 at 28 (Document 12), 30 (Document 14), 31 (Document 15); see also Dorsen, 15 F. Supp. 3d at 124-25 ("[T]he rule applied in this Circuit avoids penalizing agencies that 'choose to relent for the sake of transparency and release requested documents without exposing themselves to monetary penalties: the fact that their initial nondisclosure decision rested on a solid legal basis creates a safe harbor against the assessment of attorney fees.' Otherwise, 'agencies with legal authority to withhold requested documents would have no such safe harbor' and 'might hesitate to release the documents, since doing so would risk creating a "substantially prevail[ing]" plaintiff who might be entitled to fees.'" (quoting Brayton, 641 F.3d at 528)).
Understood in this light, the Court finds that the only arguably relevant delay in the EPA's response to H&A's December 2017 FOIA request occurred between June and October/November 2018 and that, during that period, the agency needed time to consider whether it would appeal Hall I, then needed time to coordinate how it would litigate Hall II, and, finally, in this litigation, needed time to assess whether and how Hall I impacted its withholdings and to decide, beyond that, whether to make any discretionary releases. During the relevant window, the Court sees no evidence of recalcitrance; to the contrary, the agency moved relatively quickly to amend its longstanding position and to release records.
Although the Court, accordingly, sees little reason to fault the EPA for the relatively modest delay from June to October/November 2018, it is at least possible that the EPA could have moved somewhat faster (although not much faster) after the Court issued its decision in Hall I. By way of additional background, only seven weeks passed from June 6, 2018 (when the EPA's administrative decision was due under the parties' previous agreement) until July 26, 2018 (when H&A filed suit), and during that time, the EPA was "evaluat[ing] its options for responding" to Hall I. Dkt. 52-1 at 6 (Gutierrez Decl. ¶ 12).
Notably, H&A filed suit before the time to appeal Hall I expired on August 17, 2018. See id. at 7 (Gutierrez Decl. ¶ 12). Once in this Court, the case moved with reasonable dispatch, even considering the initial skirmishing between the parties regarding the EPA's answer, which is discussed below. But, even giving H&A the benefit of the doubt and assuming that the EPA could have moved slightly faster, that would tilt the scales only marginally in H&A's favor, and, as explained below, would not alter the Court's decision.
With respect to the second wave, the Court is persuaded that the EPA acted reasonably. In particular, the EPA's basis for the redactions which H&A challenged in its motion for summary judgment, was reasonable. Indeed, the Court ordered the release of only one sentence in Document 35 and afforded the agency further opportunity to substantiate its withholdings with respect to three other documents (Documents 9, 31, and 32). The Court's summary judgment opinion makes clear that there was nothing unreasonable about the agency's position, even if the agency did not prevail on the merits in every respect and even if it subsequently decided to release some of the disputed material. The agency would have done well to provide more explanation in its papers regarding its basis for initially withholding the materials in question, but it has met its burden of establishing that its position was not unreasonable.
The substance of the Court's summary judgment opinion belies any contrary conclusion. With respect to Document 9, the Court noted that the "vast majority of the withheld material" was protected by Exemption 5, Hall III, 2021 WL 1226668, at *6, noting that only "certain aspects ... may not qualify," id. at *7. After summary judgment, the agency voluntarily released the potentially segregable material that the Court had highlighted. With respect to Document 31, the Court remarked that it was a "close question," but "on the present record, the EPA had failed to carry its burden." Id. at *10. Following summary judgment, the agency provided further clarification about its withholding, and H&A abandoned its challenge. See Dkt. 85 at 4; Min. Order (Jan. 29, 2022); Dkt. 87-1 at 10-11. The same occurred with Document 32. See Dkt. 85 at 4; Min. Order (Jan. 29, 2022); Dkt. 87-1 at 10-11. And, except for a single sentence in Document 35, the Court granted the EPA's motion for summary judgment on every other record at issue.
Finally, although this litigation spanned nearly four years from complaint to final judgment, that timeline does not, standing alone, establish that the EPA engaged in obdurate behavior. See United Am. Fin., 770 F. Supp. 2d at 258 ("It is true that this litigation stretched on for a period of almost four years, but that is not evidence of obdurate behavior." (internal quotation marks and citation omitted)). In H&A's view, much of this delay can be attributed to the EPA's failure to comply with Federal Rule of Civil Procedure 8, namely its repeated refusal to admit or deny certain allegations in H&A's amended complaint. See Dkt. 87-1 at 24. H&A has a point, but it overplays its hand. Cf. Hall II, 956 F.3d at 633. The Court did not "sanction" the EPA for "refus[ing] to comply with the Court's order to provide an answer that complies with Federal Rule of Civil Procedure 8," as H&A maintains, Dkt. 87-1 at 24, but rather simply deemed "admitted" those proper allegations that the EPA failed to "deny," as required under Rule 8(b)(6). But the Court also denied in substantial part H&A's motion to deem certain allegations in its amended complaint admitted, Dkt. 35, and granted relief with respect to only twelve of the 54 allegations
that H&A had pointed to in its motion. Min. Order (Feb. 13, 2020). As the Court explained, many of the allegations that H&A asked the Court to treat as admitted "involve[d] characterizations of legal opinions, regulations, and documents attached to and incorporated into the complaint," and H&A reached too far in asking the Court to ignore "the text of the actual" legal opinions, regulations, and similar legal documents at issue. Id. Although counsel for the EPA was partially to fault, H&A shares in the blame for prematurely seeking admissions of allegations relating to the meaning of legal opinions, regulations, and other legal documents at the pleading stage. The Court emphasizes, moreover, that this argument has no bearing on the first—and most substantial— wave of document releases at issue, and that the Factor 4 inquiry looks to the agency's basis for withholding documents, not its litigation behavior more broadly, which in any event, as the Court concluded above, was not obdurate or recalcitrant.
Overall, the Court is persuaded that the EPA was neither obdurate nor recalcitrant in initially seeking the benefit of further judicial guidance before re-evaluating its withholdings from H&A's May 2016 request and then releasing many, but not all, of the previously redacted records. Indeed, H&A itself agreed to hold its administrative appeal in abeyance pending the Court's decision in Hall I. But even assuming that the EPA might have moved somewhat more quickly during the interval between June and October/November 2018, the fourth factor does not sway the entitlement analysis significantly in either direction, and, at most, weighs only slightly in favor of the award of fees.
* * *
None of the four entitlement factors "is dispositive." Davy II, 550 F.3d at 1159. Here, however, factors two and three weigh decisively against the award of fees, while the first and fourth factors are either neutral or, at most, weigh only slightly in favor of an award of fees. Although perhaps a closer question than presented by many attorneys' fees cases, the Court is unpersuaded that H&A is entitled to an award of attorneys' fees. See Morley, 894 F.3d at 397 (affirming denial of fees where Factors 1 through 3 slightly favored awarding fees, but Factor 4 strongly did not because "a district court retains very broad discretion under the four-factor test about how to balance the factors and whether to award attorney's fees").
H&A had a commercial interest for bringing this case—along with a series of other FOIA cases—as an outgrowth of litigation that the law firm brought on behalf of its clients to challenge the EPA's regulation of blending as a bypass. By the time H&A brought this case, it had already obtained agency records (and a judicial pronouncement) establishing its core claim—that the EPA had adopted a policy of intercircuit nonacquiescence in the Eighth Circuit's Iowa League of Cities decision, and the materials that it sought in this case (unredacted copies of 29 records that the EPA had released years earlier) were unlikely to reveal any information of interest to the public generally, as opposed to H&A's clients and their peers. And even as to H&A's clients, there was little reason to expect to find much of new significant interest in the records that H&A sought. Finally, although H&A agreed to postpone the EPA's release of records in this case until ten business days after the Court's decision in Hall I, it is true that the EPA then sought a further extension until after the D.C. Circuit decided the appeal in Hall II and, even though H&A requested an earlier response, the agency did not release the first wave of records for about five months. But, in the Court's view, the
time that the agency took to consider the implications of the Court's decision in Hall I was not sufficiently egregious to upset the scales, which otherwise tip decisively against the award of attorneys' fees.
The Court, accordingly, finds that, on balance, H&A, although eligible, is not entitled to recover fees in this case.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that H&A's motion for attorneys' fees, Dkt. 87, is hereby DENIED.
SO ORDERED.