Opinion
Case No. 1:04-CV-578.
March 1, 2005
OPINION
Plaintiff, Michigan Migrant Legal Assistance Project, filed this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against Defendant, the Social Security Administration, on August 31, 2004. Plaintiff alleged in its complaint that it submitted a written FOIA request to Defendant's FOIA Coordinator in Defendant's Detroit field office on July 30, 2004, and that Defendant failed to comply with the request within the time set forth in 5 U.S.C. § 552(6)(A)(I). Plaintiff requested that this Court enjoin Defendant from withholding the requested records and award Plaintiff reasonable attorney fees and litigation costs. Plaintiff made its FOIA request after counsel for Lakewood Landscaping, the opposing party in a proceeding before the National Labor Relations Board, presented information to Plaintiff regarding Plaintiff's clients. (Alvarez Aff. ¶¶ 6, 7, Pl.'s Mem. Opp'n Def.'s Mot. Ex. A.) The opposing counsel allegedly obtained the records from Richard Muciek of Defendant's Detroit, Michigan office. (Id. ¶ 9.)
On November 2, 2004, Defendant moved to dismiss for lack of jurisdiction or, in the alternative, for failure to state a claim. By letter dated the same date, Defendant also responded to Plaintiff's request, stating that "[w]e have searched our records and are unable to locate any documents responsive to your request." (Letter from Cantor to Warner of 11/2/04, Def.'s Reply Br. Ex. 1.) Defendant argues in its motion that Plaintiff's complaint should be dismissed because Defendant conducted a diligent search of its files for the documents requested and found none that were responsive to Plaintiff's request. Defendant supports its motion with an affidavit from District Manager Richard Muciek, who states that he received a letter from Lakewood Landscaping but did not keep copies of the letter or his response to the letter and that after conducting a diligent search, no records responsive to the request could be located. (Muciek Decl. ¶¶ 6, 7.) Plaintiff has filed a response in which it admits that it is not requesting that the Court order Defendant to retrieve the documents it no longer possesses or to order discovery into why the documents were not retained. Plaintiff argues, however, that the Court still retains jurisdiction to award attorney fees and that Plaintiff is entitled to an award of attorney fees and litigation costs as authorized by FOIA. Defendant does not dispute that the Court retains jurisdiction to award attorney fees, see GMRI, Inc. v. EEOC, 149 F.3d 449, 451 (6th Cir. 1998) ("Although plaintiff's claim for production of information is moot, its motion for attorney fees and costs is not."), but it argues that Plaintiffs do not meet the standard for an award of statutorily authorized fees under Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1935 (2001).
FOIA provides that: "The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). In GMRI, Inc. v. EEOC, 149 F.3d 449 (6th Cir. 1998), the Sixth Circuit stated that in assessing whether an award of fees and costs is appropriate under this statute, courts must apply a two-part test: "First, they decide whether the plaintiff `substantially prevailed' and is thus eligible for such an award. If so, they then determine whether the plaintiff is entitled to such an award based upon a balancing of equitable considerations." Id. at 451 (citations and footnote omitted). The plaintiff in GMRI submitted a FOIA request to the EEOC seeking the contents of a complainant's prior charge file that was currently in litigation in federal court. The EEOC responded by letter that it could neither grant nor deny the plaintiff's request because it could not locate the charge file. Following an unsuccessful administrative appeal, the plaintiff filed a complaint in federal court seeking the requested information. Eventually, the EEOC produced a document used to track the file but was unable to produce the contents of the file because they had been either lost or discarded. The district court granted the plaintiff summary judgment on the basis that the EEOC conducted an inadequate search and awarded the plaintiff attorney fees. On appeal, the Sixth Circuit held that the district court properly determined that the plaintiff substantially prevailed because the lawsuit was reasonably necessary to obtain the tracking document and the lawsuit had a "causative effect" upon the release of the document. Id. at 452. However, the court concluded that remand was appropriate because the district court failed to conduct a balancing of equitable considerations to determine whether the plaintiff, although eligible for an award of fees, was entitled to an award.Id.
Plaintiff contends that it is entitled to an award of fees under the two-step approach outlined in GMRI. First, it notes that it was required to file the instant suit because Defendant failed to comply with Plaintiff's request or properly respond under FOIA. Plaintiff notes that Defendant responded only after Plaintiff filed this case, and Defendant has never asserted that it would have responded to Plaintiff's request in the absence of the lawsuit. Second, Plaintiff argues that the relevant equitable factors weigh in favor of an award because Defendant had no legitimate reason for failing to respond to Plaintiff's request, and Plaintiff sought the records in order to protect its disadvantaged clients from potential employer abuses of their Social Security records.
Defendant contends that Plaintiff is not eligible for an award of fees because Plaintiff did not substantially prevail under the Supreme Court's decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835 (2001), which substantially altered the basis for attorney fee awards under "prevailing party" fee statutes. In Buckhannon, the issue before the Court was whether the plaintiff was entitled to an award of fees under the Fair Housing Amendments Act of 1988, which authorizes an award of fees to the "prevailing party," where the plaintiff had failed to secure either a judgment on the merits or a court ordered consent decree. Id. at 600, 121 S. Ct. at 1838. The Court held that courts may award fees under "prevailing party" statutes only where there is a "judicially sanctioned change in the legal relationship of the parties." Id. at 605, 121 S. Ct. at 1840. This means that a "prevailing party" is is one who obtains relief from the court, such as a judgment on the merits or a court-ordered consent decree. Id. at 604, 121 S. Ct. at 1840. The Court specifically rejected the "catalyst theory," i.e., the lawsuit was the catalyst that led to the disclosure of the documents, as a proper basis for a fee award. Id. at 605-08, 121 S. Ct. at 1840-42. Finally, the Court noted that it has interpreted fee-shifting provisions consistently. Id. at 603 n. 4, 121 S. Ct. at 839 n. 4 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S. Ct. 1933, 1939 n. 7 (1983)).
Although Buckhannon did not involve a claim under FOIA, several courts, including the Second Circuit and the D.C. Circuit, have applied Buckhannon to the FOIA fee shifting provision. See Union of Needletrades, Indus. Textile Employees v. United States Immigration Naturalization Serv., 336 F.3d 200, 206-07 (2d Cir. 2003) (concluding that the Court's reasoning in Buckhannon extends to attorney fee awards under FOIA); Oil, Chemical and Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452 (D.C. Cir. 2002) (concluding that the term "substantially prevailed" in the FOIA attorney fee provision was not materially different from the "prevailing party" language in other fee-shifting statutes such as those cited in Buckhannon); W T Offshore, Inc. v. United States Dep't of Commerce, No. Civ. A. 03-2285, 2004 WL 2984343, at *3 (E.D. La. Dec. 23, 2004) (applying Buckhannon to the plaintiff's request for attorney fees under FOIA rather than the catalyst theory under prior Fifth Circuit law); AutoAlliance Int'l, Inc. v. United States Customs Serv., 300 F. Supp. 2d 509, 513 (E.D. Mich. 2004) ("The Buckhannon standard applies to awarding attorney fees under FOIA." (footnote omitted)); Landers v. Dep't of the Air Force, 257 F. Supp. 2d 1011, 1012 (N.D. Ohio 2003) (same); Read v. FAA, 252 F. Supp. 2d 1108, 1109 (W.D. Wash. 2003) (same). The Court finds the reasoning in these cases for applying Buckhannon to attorney fee awards under FOIA to be persuasive, and therefore, the Court joins them in holding that a plaintiff must obtain judicial relief that alters the legal relationship of the parties in order to "substantially prevail" on a FOIA claim for purposes of attorney fees and litigation expenses. Moreover, the Court declines to follow GMRI because that case was decided prior to Buckhannon and the "catalyst theory" employed in that case was rejected in Buckhannon.
Seeking to distinguish Buckhannon, Plaintiff argues that a FOIA claim is a matter in equity. The D.C. Circuit in Oil, Chemical and Atomic Workers rejected a similar argument, noting that FOIA cases are not unique from other cases in which fees are available to the "prevailing party" and that such reasoning fails to consider actions in which the "prevailing party" may seek both equitable relief and damages. See 288 F.3d at 456. In addition, the court noted that the Supreme Court considered a similar argument in Buckhannon, but the Court ultimately looked to the "prevailing party" language of the statute. Id. Similarly, the court in Landers v. Department of the Air Force, 257 F. Supp. 2d 1011 (S.D. Ohio), rejected the plaintiff's argument that in spite of Buckhannon it should exercise its equitable discretion to award fees. The court concluded that it was "without equitable discretion to award fees" and also observed that it lacked the authority to award fees against the government because it has not waived its sovereign immunity to permit such an award. Id. at 1013. For these reasons, the Court also concludes that it may not avoid the plain language of the statute by awarding fees based upon equitable considerations.
Because Plaintiff has not obtained judicial relief in this case, Plaintiff did not substantially prevail and is not entitled to an award of fees and litigation costs under 5 U.S.C. § 552(a)(4)(E). Accordingly, the Court will grant Defendant's motion and dismiss this action.
An Order consistent with this Opinion will be entered.