Amicus Curiae Brief — Michael W. Gahagan, Petitioner v. Citizenship & Immigration Services

Supreme Court briefAug 14, 2019

Ask Donna

What actually matters in this document.

Text

No. 19-73

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------MICHAEL W. GAHAGAN,

Petitioner,

UNITED STATES CITIZENSHIP &

IMMIGRATION SERVICES, ET AL.,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

-----------------------------------------------------------------BRIEF OF AMICUS CURIAE PUBLIC RECORD

MEDIA IN SUPPORT OF PETITIONER

-----------------------------------------------------------------KATHERINE S. BARRETT WIIK

Counsel of Record

BRIAN J. LINNEROOTH

BEST & FLANAGAN LLP

60 South Sixth St., Ste. 2700

Minneapolis, MN 55402

(612) 339-7121

kbarrettwiik@bestlaw.com

blinnerooth@bestlaw.com

August 14, 2019

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE AND DISCLOSURE ........................................................

SUMMARY OF THE ARGUMENT .....................

ARGUMENT ........................................................

FOIA enforcement actions brought by

public requesters play an essential role in

FOIA compliance .......................................

A. PRM’s own FOIA litigation demonstrates that the availability of attorney fees in FOIA litigation is an

important mechanism for ensuring

FOIA compliance and government accountability ..........................................

B. The plain language of FOIA allows

courts the ability to award attorney

fees and costs to a complainant who

“substantially prevails” ....................... 15

II.

The Fifth Circuit’s holding in “Gahagan”

frustrates FOIA compliance by improperly

barring a class of requesters from fully

utilizing its fee-shifting provisions ........... 18

CONCLUSION..................................................... 21

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Sandoval, 532 U.S. 275 (2001) ..............20

Barr v. Matteo, 360 U.S. 564 (1959) .............................4

Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011)...........................18

Buckhannon Board and Home Care, Inc. v. West

Virginia Dep’t of Health and Human Resources, 532 U.S. 598 (2001) ......................................7

Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 820 F.Supp.2d 39

(D.D.C. 2011) ..................................................... 10, 15

Dep’t of Air Force v. Rose, 425 U.S. 352 (1976).............4

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) .............20

Food Mktg. Inst. v. Argus Leader Media, 139

S. Ct. 2356 (2019) ....................................................18

Milner v. Dep’t of Navy, 562 U.S. 562 (2011) .............18

Morgan Stanley Capital Grp. Inc. v. Pub. Util.

Dist. No. 1 of Snohomish Cty., Wash., 554 U.S.

527 (2008) ................................................................18

Pub. Record Media, LLC v. U.S. Dep’t of Justice,

No. CIV. 12-1225 MJD/AJB, 2013 WL 3024091

(D. Minn. Jan. 29, 2013), aff’d, No. CIV. 121225 MJD/AJB, 2013 WL 1900622 (D. Minn.

May 7, 2013) ...................................................... 10, 14

iii

TABLE OF AUTHORITIES—Continued

Page

STATUTES

5 U.S.C. § 552(a)(3)(A) ................................................15

5 U.S.C. § 552(a)(4)(A)(ii) ............................................19

5 U.S.C. § 552(a)(4)(B) ..................................................5

5 U.S.C. § 552(a)(4)(E) .......................................... 10, 20

5 U.S.C. § 552(h)(1–6) ...................................................5

28 U.S.C. § 2412(c) ......................................................20

Civil Rights Act ...........................................................20

Equal Access to Justice Act ........................................20

Freedom of Information Act, 5 U.S.C. § 552....... passim

Minnesota Government Data Practices Act ................2

OPEN Government Act of 2007, Pub. L. No. 110175, §§ 2(5), 3, 4(a), 5, 121 Stat. 2524 (Dec. 31,

2007) ..........................................................................9

RULES AND REGULATIONS

U.S. Sup. Ct. R. 37.6 ......................................................1

OTHER AUTHORITIES

153 Cong. Rec. 6345 (2007) ...........................................7

153 Cong. Rec. 6348 (2007) ...........................................7

153 Cong. Rec. 6350 (2007) ..................................... 7, 17

153 Cong. Rec. 6351 (2007) ...........................................8

153 Cong. Rec. 22943 (2007) .......................................17

TABLE OF AUTHORITIES—Continued

Page

153 Cong. Rec. 22947 (2007) .......................................17

H.R. Rep. No. 110-45 (2007) .........................................8

About PRM, PUBLIC RECORD MEDIA, http://bit.ly/

2dwKOaS (last visited Aug. 14, 2019) ......................1

Christine Mehta, Annual Report: FOIA Lawsuits Reach Record Highs in FY 2018, THE

FOIA PROJECT, Nov. 12, 2018, http://foiaproject.

org/2018/11/12/annual-report-foia-lawsuitsreach-record-highs-in-fy-2018/ ......................... 6, 16

Complaint, Brennan Center for Justice at New

York University School of Law et al. v. United

States Department of Justice, No. Civ. 1801860 RDM (D.D.C. Aug. 8, 2018)...........................16

Complaint, Moeller v. Equal Employment Opportunity Commission, No. Civ. 19-02330 DLF

(D.D.C. Aug. 2, 2019) ...............................................16

Complaint, Public Record Media, LLC v. U.S.

Department of Health and Human Services,

No. Civ. 12-03065 (JRT/TNL) (D. Minn. Dec. 7,

2012) ..........................................................................5

Data Practices Advisory Opinion 14-011, Minnesota Department of Administration Data

Practices Office, Sept. 17, 2014, https://mn.gov/

admin/data-practices/opinions/library/#/detail/

appId/1/id/267574......................................................2

Exhibits in Support of Motion for Fees and Cost,

Pub. Record Media, LLC v. U.S. Dep’t of Justice, No. CIV. 12-1225 MJD/AJB (D. Minn. Oct.

30, 2012) ............................................................ 11, 12

TABLE OF AUTHORITIES—Continued

Page

FOIA Lawsuits Surge In Trump Administration’s First Year, THE FOIA PROJECT, Jan. 16,

2018, http://foiaproject.org/2018/01/16/lawsuitstrump-first-year/ .......................................................6

Freedom of Information Act Request—Department of the Interior, PUBLIC RECORD MEDIA,

http://www.publicrecordmedia.org/freedom-ofinformation-act-request-department-of-theinterior-documents/ (last visited Aug. 14,

2019) ..........................................................................2

Kevin Duchschere, A Need to Know Drives St.

Paul Nonprofit’s Mission, MINNEAPOLIS STAR

TRIB., Jul. 23, 2015, available at http://strib.mn/

1CTdnZN ...................................................................1

Obama Administration sets new record for withholding FOIA requests, PBS NEWS HOUR, Mar.

18, 2015, https://www.pbs.org/newshour/

nation/obama-administration-sets-new-recordwithholding-foia-requests .........................................6

Peter Callaghan, Lawsuit over Amazon bid reveals the latest way Minnesota officials are attempting to sidestep public disclosure laws,

MINNPOST, June 28, 2018, https://www.minn

post.com/politics-policy/2018/06/lawsuit-overamazon-bid-reveals-latest-way-minnesotaofficials-are-attemptin/ .............................................2

TABLE OF AUTHORITIES—Continued

Page

PRM’s Memorandum in Support of Motion for

Fees and Costs, Pub. Record Media, LLC v.

U.S. Dep’t of Justice, No. CIV. 12-1225

MJD/AJB (D. Minn. Oct. 30, 2012) ............. 12, 13, 14

PUBLIC RECORD MEDIA, http://www.publicrecord

media.org/2009-wsa-92-documents/ (last visited Aug. 14, 2019) ...................................................11

Susan B. Long, Harry Hammitt, Increased Use

of the Freedom of Information Act by the Media: Exploring What Took the Media So Long,

63 Vill. L. Rev. 895 (2018) .......................................16

U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-16-667,

FREEDOM OF INFORMATION ACT: LITIGATION

COSTS FOR JUSTICE AND AGENCIES COULD NOT

BE FULLY DETERMINED (Sept. 2016), available

at https://www.gao.gov/assets/680/679631.pdf .........6

INTEREST OF AMICUS CURIAE

AND DISCLOSURE1

The Amicus, Public Record Media (“PRM”), is a

nonpartisan, nonprofit organization concerned with

the proper interpretation and enforcement of the Freedom of Information Act, 5 U.S.C. § 552, as amended

(“FOIA”).

PRM’s mission is to advance “transparency and

democracy through the use, application, and enforcement of freedom of information laws.”2 PRM uses FOIA

and other public records statutes to inspect and publish thousands of government documents, which it

makes available on its website at no charge for the benefit of policy makers, the press, and the public at large.

In addition, PRM functions as a news organization by

creating original articles and reports based on government documents obtained through freedom of information laws.

The Amicus certifies under U.S. Sup. Ct. R. 37.6 that: (1)

no counsel for a party authored the brief in whole or in part; and

(2) no person or entity has made a monetary contribution to the

preparation or submission of the brief other than the Amicus, its

members, and its counsel. The Amicus gave all counsel of record

notice of its intention to file a cert-stage amicus brief at least ten

days before the brief ’s due date, and received consent to file this

brief from all parties.

About PRM, PUBLIC RECORD MEDIA, http://bit.ly/2dwKOaS

(last visited Aug. 14, 2019); see also Kevin Duchschere, A Need to

Know Drives St. Paul Nonprofit’s Mission, MINNEAPOLIS STAR

TRIB., Jul. 23, 2015, available at http://strib.mn/1CTdnZN.

PRM also provides a benefit to the public by regularly challenging agency withholding of documents,3

promoting agency compliance with FOIA and other

public record statutes,4 and publishing its results.5 In

its pursuit of government records, PRM has filed FOIA

lawsuits against a variety of federal agencies, and has

undertaken numerous FOIA administrative appeals.

Finally, PRM provides free education about freedom of

information laws, in order to facilitate public access to

government information, and to encourage governmental accountability through citizen use of FOIA and

similar statutes. PRM’s educational programs have

been presented to diverse members of the public, including journalists, academics, attorneys, students,

and numerous others.

PRM is governed by a volunteer board of directors,

and its affairs are largely conducted by volunteer staff.

See Peter Callaghan, Lawsuit over Amazon bid reveals the

latest way Minnesota officials are attempting to sidestep public

disclosure laws, MINNPOST, June 28, 2018, https://www.minn

post.com/politics-policy/2018/06/lawsuit-over-amazon-bid-revealslatest-way-minnesota-officials-are-attemptin/.

Data Practices Advisory Opinion 14-011, Minnesota Department of Administration Data Practices Office, Sept. 17, 2014,

https://mn.gov/admin/data-practices/opinions/library/#/detail/

appId/1/id/267574 (PRM requested advisory opinion on government

entity compliance with the Minnesota Government Data Practices

Act).

See, e.g., Freedom of Information Act Request—Department

of the Interior, PUBLIC RECORD MEDIA, http://www.publicrecord

media.org/freedom-of-information-act-request-department-of-theinterior-documents/ (last visited Aug. 14, 2019).

In those instances in which PRM employs legal counsel, such counsel provide services on either a pro bono

or discounted basis, in furtherance of PRM’s publicfacing mission.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

FOIA’s fee-shifting provision, as amended by the

2007 OPEN Government Act (the “Act”), serves a significant public accountability purpose by allowing requesters the opportunity to seek attorney fee and cost

awards if they have “substantially prevailed” during

FOIA litigation with the government.

The Fifth Circuit’s holding in Gahagan v. United

States Citizenship & Immigration Services, et al. ignores the plain language of the FOIA fee-shifting

provision and unnecessarily constricts the class of requesters who are eligible to seek attorney fee awards,

thus limiting access to an accountability and compliance feature specifically added by Congress when it

passed the Act.

------------------------------------------------------------------

ARGUMENT

FOIA is essential to the democratic process, and

ensures governmental openness and accountability.

The effective functioning of a free government

like ours depends largely on the force of an informed public opinion. This calls for the

widest possible understanding of the quality

of government service rendered by all elective

or appointed public officials or employees.

Barr v. Matteo, 360 U.S. 564, 577 (1959) (Justice

Black).

FOIA serves “to pierce the veil of administrative

secrecy and to open agency action to the light of public

scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976).

FOIA enforcement relies, in part, on its distinct attorney fee-shifting provision, under which a complainant who “substantially prevails” in litigation brought

under FOIA may be awarded attorney fees and costs

by the court. In ignoring the plain and simple text of

the Act, the Fifth Circuit has improperly introduced

barriers to eligibility for attorney fees under FOIA. The

Court’s review is warranted to ensure that the Act’s

important fee-award feature may be available to all eligible requesters—including self-represented attorneys who utilize their own legal services.

FOIA enforcement actions brought by public requesters play an essential role in FOIA

compliance.

Agencies of the federal government do not always

comply with their statutory duties—set out in FOIA—

to provide public requesters with access to government

records. Indeed, FOIA contemplates that in those instances where agencies have failed to abide by FOIA’s

requirements, enforcement relies upon requesters

filing suit in federal district court to ensure compliance.6 Under FOIA, requesters who have been unlawfully denied records may petition courts to “order the

production of records improperly withheld from the

complainant.” 5 U.S.C. § 552(a)(4)(B).

The disclosure of government records is a central—but not exclusive—outcome of successful FOIA

litigation, and it is an outcome that PRM has repeatedly achieved as a “complainant” in lawsuits against

federal agencies. PRM has sought and obtained thousands of pages of government records through FOIA

litigation, including records from the Department of

Justice (“DOJ”), the Department of the Interior

(“DOI”), and the Department of Health and Human

Services (“HHS”).7

FOIA, as amended by the Act, also provides for a mediation

track, available through the Office of Government Information

Services (“OGIS”) as a “nonexclusive alternative” to litigation.

However, the outcome of the mediation process is not binding on

agencies, and any opinions issued by OGIS are advisory only. 5

U.S.C. § 552(h)(1–6).

In the case of HHS, PRM filed suit to obtain agency correspondence related to a Minnesota State Senator who had difficulty receiving information from the Centers for Medicaid and

Medicare Services (“CMS”) after raising concerns about the use of

monies disbursed by CMS. Complaint, Public Record Media, LLC

v. U.S. Dep’t of Health and Human Services, No. Civ. 12-03065

(JRT/TNL) (D. Minn. Dec. 7, 2012), ECF No. 1.

FOIA litigation has increased in recent years,8 as

have agency backlogs in responding to FOIA requests.9

PRM’s operational history has overlapped with this

trend, and PRM’s use of litigation as a tool to obtain

records has been a necessary response to prevailing

conditions.

Recognizing ongoing issues with FOIA compliance

by federal agencies, Congress passed the 2007 OPEN

Government Act, which aimed to address FOIA compliance problems, and made specific changes to FOIA’s

litigation provisions to ensure their vitality. During a

March 14, 2007 floor debate about the Act, Representative William Clay specifically highlighted the problem

of agency noncompliance, noting that: “During a hearing in February, this subcommittee heard extensive

testimony concerning long delays and bureaucratic obstacles experienced by requesters trying to obtain

See, e.g., U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-16-667,

FREEDOM OF INFORMATION ACT: LITIGATION COSTS FOR JUSTICE

AND AGENCIES COULD NOT BE FULLY DETERMINED (Sept. 2016)

(finding 57 percent increase in FOIA lawsuits since 2006), available at https://www.gao.gov/assets/680/679631.pdf; Christine Mehta, Annual Report: FOIA Lawsuits Reach Record Highs in FY

2018, THE FOIA PROJECT, Nov. 12, 2018, http://foiaproject.org/

2018/11/12/annual-report-foia-lawsuits-reach-record-highs-in-fy2018/ (providing nonprofit filers make up 50 percent of all FOIA

lawsuits filed in FY 2017 and FY 2018), FOIA Lawsuits Surge In

Trump Administration’s First Year, THE FOIA PROJECT, Jan. 16,

2018, http://foiaproject.org/2018/01/16/lawsuits-trump-first-year/.

See Obama Administration sets new record for withholding

FOIA requests, PBS NEWS HOUR, Mar. 18, 2015, https://www.

pbs.org/newshour/nation/obama-administration-sets-new-recordwithholding-foia-requests.

government records under FOIA.” 153 Cong. Rec. 6345

(2007).

Similarly, Representative Carolyn Maloney observed that: “The backlogs at agencies and Departments continue to grow, and frequently the only

recourse for the denial of requested information is to

file lawsuits.” 153 Cong. Rec. 6348 (2007).

During the course of the debate, Representative

Tom Udall also specifically addressed issues that were

constraining FOIA litigants, including the U.S. Supreme Court’s opinion in Buckhannon Board and

Home Care, Inc. v. West Virginia Dep’t of Health and

Human Resources, 532 U.S. 598 (2001): “Because of delays and backlogs, requesters often have found it hard

to learn about the status of their requests, and a recent

Supreme Court decision has hampered requesters’

ability to litigate their claims.” 153 Cong. Rec. 6350

(2007).

In summarizing the impact of Buckhannon, a

March 12, 2007 report on the Act submitted by the

House Committee on Oversight and Government Reform noted that:

[The change in the Act’s fee-shifting provision] responds to the Supreme Court’s ruling

in Buckhannon Board and Home Care, Inc. v.

West Virginia Dep’t of Health and Human Resources, 532 U.S. 598 (2001) which eliminated

the “catalyst theory” of attorney fee recovery

under certain federal rights laws. This section

makes clear that the Buckhannon decision

does not apply to FOIA cases, and ensures

that requesters are eligible for attorneys fees

and other litigation costs if they obtain relief

from the agency during litigation.

H.R. Rep. No. 110-45 at 6 (2007).

In support of the proposed changes to FOIA’s litigation provisions, Representative Udall cited a 2007

Rocky Mountain News editorial which noted that the

fee-shifting provisions of the Act were aimed at penalizing the government for deliberately changing positions during FOIA litigation as a tactic for frustrating

requesters and avoiding financial liability:

The Government would have to reimburse the

legal fees of more parties that sue under

FOIA. Currently, there’s only one way a party

that’s filed suit to enforce a FOIA request can

get repaid: The Government has to lose in

court. The amendments would force agencies

to repay attorneys fees if the government

turns over records before a final ruling is issued. This would prevent agencies from sticking media groups with attorneys fees for

surrendering records just before a judge rules.

153 Cong. Rec. 6351 (2007).

After passage by both houses of Congress, the Act

was signed into law on September 14, 2007. The final

form of the Act included FOIA’s current fee-shifting

language, as well as several other measures designed

to enable requesters to better utilize and enforce the

FOIA.10

A. PRM’s own FOIA litigation demonstrates

that the availability of attorney fees in

FOIA litigation is an important mechanism for ensuring FOIA compliance and

government accountability.

Finding that “in practice, the Freedom of Information Act has not always lived up to the ideals of the

Act,” as explained above, Congress amended FOIA’s

fee-shifting provision in 2007 to expressly allow

awards of reasonable attorney fees when a lawsuit results in a “voluntary or unilateral change in position

by [an] agency.” OPEN Government Act of 2007, Pub.

L. No. 110-175, §§ 2(5), 4(a), 121 Stat. 2524 (Dec. 31,

2007).

Under FOIA’s amended fee-shifting provision, a

plaintiff is eligible for reasonable fees and costs in

FOIA litigation if the plaintiff ’s lawsuit served as a

“catalyst” in achieving a voluntary change in an

agency’s position. Under the amendments to FOIA, “a

complainant has substantially prevailed” and consequently is eligible for a fee award “if the complainant

has obtained relief through either (I) a judicial order,

or an enforceable written agreement or consent decree,

The OPEN Government Act of 2007 also included enhanced

“copy fee” provisions for news media requesters, and mechanisms

for instituting disciplinary actions for “arbitrary and capricious”

agency rejections of FOIA requests. OPEN Government Act of

2007, Pub. L. No. 110-175, §§ 3, 5, 121 Stat. 2524 (Dec. 31, 2007).

or (II) a voluntary and unilateral change in position by

the agency, if the complainant’s claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E); see also Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of

Justice, 820 F.Supp.2d 39, 43 (D.D.C. 2011).

FOIA’s fee-shifting provision, as amended by the

Act, has been a meaningful tool for PRM in helping to

compensate attorneys working at reduced rates to

compel the disclosure of records from federal agencies.

FOIA’s amended fee-shifting provision has also specifically allowed PRM the opportunity to use fee awards

to disincentivize agency misconduct.

In October of 2011, PRM sent a three-part FOIA

request to the DOJ’s Office of Legal Counsel. Two parts

of the request sought information about the use of unmanned aerial vehicles (“UAVs”) to conduct lethal force

operations against United States citizen Anwar alAwlaki, or against other United States persons located

abroad. The third part sought information about the

potential lethal use of UAVs against any persons physically located within areas under the jurisdiction of the

United States. Pub. Record Media, LLC v. U.S. Dep’t

of Justice, No. CIV. 12-1225 MJD/AJB, 2013 WL

3024091, at *1 (D. Minn. Jan. 29, 2013), aff ’d, No. CIV.

12-1225 MJD/AJB, 2013 WL 1900622 (D. Minn. May 7,

2013) (affirming the magistrate judge’s order in its entirety, concluding the order is neither clearly erroneous

nor contradictory to law).

PRM’s FOIA request was submitted during a time

period in which the Obama administration was

utilizing UAV-based missile strikes as a counterterrorism tactic, and in the wake of press reports indicating that DOJ’s Office of Legal Counsel had issued a

legal opinion setting out its justification for employing

lethal force against United States citizens in an extrajudicial context. PRM subsequently learned that while

other news and nonprofit organizations had filed FOIA

requests for legal opinions about the use of lethal force

against U.S. citizens abroad,11 PRM alone had sought

opinions pertaining to the potential lethal use of UAVs

on the domestic front.12

DOJ responded to the first item of PRM’s threepart FOIA request (information pertaining to Anwar

al-Awlaki) by stating that pursuant to enumerated exemptions “the Office of Legal Counsel neither confirms

nor denies the existence of the documents described in

this item.” Exhibits in Support of Motion for Fees and

Costs at 5, Pub. Record Media, LLC v. U.S. Dep’t of

Justice, No. CIV. 12-1225 MJD/AJB (D. Minn. Oct. 30,

2012), ECF No. 24-1.

Regarding the remainder of PRM’s three-part request, DOJ replied that “[w]e have identified several

The New York Times, the American Civil Liberties Union,

and the First Amendment Coalition filed related FOIA requests

during the same period, but they did not seek records similar to

those detailed in “Item 3” of PRM’s request.

Other PRM FOIA requests (to the Federal Aviation Administration) have revealed the use of “Predator” UAVs within

the continental United States for border surveillance missions.

PUBLIC RECORD MEDIA, http://www.publicrecordmedia.org/2009wsa-92-documents/ (last visited Aug. 14, 2019). Predator UAVs

are also used as mobile armament platforms for military operations overseas.

documents that are responsive to the remaining items

in your request. We are withholding these documents

pursuant to [several FOIA exemptions].” Id. PRM subsequently filed an administrative appeal to contest

DOJ’s withholding of some of the additional documents

“responsive to the remaining items” in PRM’s request.

Id. at 7–14. PRM’s administrative appeal was explicitly narrowed to only contest the withholding of documents related to the third part (“Item 3”) of PRM’s

request—information about the use of lethal force (via

UAVs) against persons physically located within areas

under the jurisdiction of the United States. Id.

DOJ confirmed receipt of PRM’s administrative

appeal, but did not otherwise substantively respond to

PRM’s appeal. PRM then filed suit on May 22, 2012,

seeking “Item 3” documents withheld by DOJ. Id. at 16.

On August 3, 2012—more than two months after

litigation had commenced—DOJ reversed its initial

position, indicating for the first time that it did not

have any documents responsive to the third part of

PRM’s request. PRM’s Memorandum in Support of Motion for Fees and Costs at 2, Pub. Record Media, LLC

v. U.S. Dep’t of Justice, No. CIV. 12-1225 MJD/AJB (D.

Minn. Oct. 30, 2012), ECF No. 23. PRM subsequently

sought detailed information (including search declarations) about DOJ’s change of position, and then, when

unable to confirm the existence of responsive documents, moved for attorney fees under the “catalyst theory” adopted in the 2007 OPEN Government Act. Id. at

5. In moving for fees, PRM argued both for eligibility

for fees, and entitlement to fees. Id. at 5.

In arguing for eligibility, PRM relied on the plain

language of FOIA’s fee-shifting provision, noting that

the organization had “substantially prevailed,” as its

lawsuit caused a change in position by Defendant DOJ.

Id. at 8. “Because Plaintiff caused the government to

change position, it has substantially prevailed and is

eligible for fees. And though the agency’s change in position here is a disclosure of dispositive information rather than a disclosure of records, the same statutory

basis and rationale for awarding fees applies.” Id. at 10.

In arguing for its entitlement to fees, PRM

stressed the public benefits that accrued from its litigation, including using a fee award to censure the government for unclear and evasive conduct in responding

to its FOIA request, and to help stave off similar conduct in the future:

Without fee awards in cases like this, there

will be an incentive for agencies to issue incomplete and unclear responses to proper

FOIA requests, and a disincentive for goodfaith requesters to venture time and resources in pursuit of the same. Without fee

awards in cases like this, agencies could respond in an incomplete or unclear manner, as

they have here, delay FOIA processes for

months, and then, after a requester is forced

to initiate litigation with an agency well

known to have deeper stores of time and resources, change positions in a manner which

if accepted as true would render the suit moot.

This is what has taken place here, and is,

Plaintiff submits, the type of interaction that

FOIA’s section 552(a)(4)(E)(ii) is meant to discourage. The government should not avoid responsibility for expenses simply by rendering

a case moot through its own actions, whether

by producing documents or declaring no such

documents exist. Requesters faced with incomplete responses under FOIA in the future

would otherwise face even more difficult resource decisions.

Id. at 14.

The federal magistrate judge held the DOJ’s reversal on the existence of responsive documents to be a

substantial change in its position and awarded PRM

fees. Pub. Record Media, 2013 WL 3024091, at *2–5. In

awarding fees, the federal magistrate judge highlighted the benefits that PRM’s litigation provided to

the public, writing that:

Despite the fact that no documents were ever

produced, the Plaintiff and the public at large

can still glean important information from

[DOJ’s change in position]. . . . Plaintiff ’s suit

did not uncover any documents . . . [but] did

nevertheless provide the public with the benefit of important information that was not

available to the public prior to the suit. . . .

This information, which reveals the general

scope of the United State’s lethal use of UAVs,

is in and of itself valuable information that

benefits the public.

Id. at *3.

PRM’s fee award in this case utilized the 2007

FOIA amendments, and the Act’s incorporation of the

“catalyst theory” into FOIA’s attorney fee-shifting

provisions. Under that provision’s plain language, a

requester like the plaintiff in Gahagan (a selfrepresented attorney who has substantially prevailed

in FOIA litigation) should likewise be eligible for an

award of attorney fees, and consequently should be allowed to submit a fee petition in federal court.13

B. The plain language of FOIA allows

courts the ability to award attorney fees

and costs to a complainant who “substantially prevails.”

FOIA’s plain language—as amended by the 2007

OPEN Government Act—specifically provides “the

court may assess against the United States reasonable

attorneys 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)(i).

Under FOIA, a “complainant” has standing to

bring a FOIA lawsuit so long as the “complainant” is

the same “person” who made the initial “request” under 5 U.S.C. § 552(a)(3)(A). FOIA’s plain language is silent as to the definition of such “persons,” but several

Once “eligible” for attorney fees, a requester must be evaluated by the court for “entitlement” to fees under at least four

factors. See Citizens for Responsibility, 820 F.Supp.2d at 45 (citations omitted). No one factor is dispositive. See id.

decades of FOIA litigation demonstrate that the “persons” that make government record requests under

FOIA are a wide and varied group. See, e.g., Susan B.

Long, Harry Hammitt, Increased Use of the Freedom of

Information Act by the Media: Exploring What Took the

Media So Long, 63 VILL. L. REV. 895, 897 (2018) (discussing increase in the number of FOIA lawsuits filed

by news organizations); Christine Mehta, Annual Report: FOIA Lawsuits Reach Record Highs in FY 2018,

THE FOIA PROJECT, Nov. 12, 2018, http://foiaproject.

org/2018/11/12/annual-report-foia-lawsuits-reach-recordhighs-in-fy-2018/ (providing nonprofit filers make up

50 percent of all FOIA lawsuits filed in FY 2017 and

FY 2018); Complaint, Moeller v. Equal Employment

Opportunity Commission, No. Civ. 19-02330 DLF (D.D.C.

Aug. 2, 2019), ECF No. 1 (example of FOIA pro se lawsuit filed by a licensed attorney); Complaint, Brennan

Center for Justice at New York University School of

Law et al. v. United States Department of Justice, No.

Civ. 18-01860 RDM (D.D.C. Aug. 8, 2018), ECF No. 1

(example of FOIA lawsuit filed by an academic institution).

The historically diverse nature of FOIA requesters

was specifically mentioned during congressional debates over the 2007 OPEN Government Act. During

the House of Representatives’ floor debate over the Act,

Representative Udall referenced the diverse composition of the FOIA requesters who would stand to benefit

from the proposed amendments, noting that: “FOIA

has been used effectively by journalists, public interest

organizations, corporations, and individuals to access

Government information.” 153 Cong. Rec. 6350 (2007).

During Senate debates over the Act, Senator John

Cornyn noted that “[t]he act has the support of business groups, such as the U.S. Chamber of Commerce

and National Association of Manufacturers, media

groups and more than 100 advocacy organizations

from across the political spectrum.” 153 Cong. Rec.

22947 (2007). Senator Patrick Leahy further noted

that additional support for the legislation came from

“the American Library Association . . . OpenTheGovernment.org, Public Citizen, the Republican Liberty

Caucus, the Sunshine in Government Initiative, and

the Vermont Press Association.” 153 Cong. Rec. 22943

(2007).

Just as the congressional record evinces an inclusive vision of the requesters who would be impacted by

the 2007 FOIA amendments, the amendments themselves contain no express language barring any particular class of requesters from being able to use FOIA’s

fee-shifting provision. The circumstances that allowed

PRM to “substantially prevail” in its litigation with

DOJ are certain to be encountered by other FOIA requesters who utilize legal services (including selfrepresented attorneys who utilize their own services),

and those requesters should likewise be eligible to

make a case for fee awards to the court.

II.

The Fifth Circuit’s holding in “Gahagan”

frustrates FOIA compliance by improperly

barring a class of requesters from fully utilizing its fee-shifting provisions.

The Court’s interpretation of FOIA starts and

ends with its text. Milner v. Dep’t of Navy, 562 U.S. 562,

569 (2011). Any casual disregard of FOIA’s plain statutory language must be rejected. Food Mktg. Inst. v.

Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (rejecting district court’s addition of “substantial competitive harm” requirement into the term “confidential” in

favor of the plain language of the statute).

The plain language of FOIA’s fee-shifting provision does not differentiate between requesters—if a

complainant requester substantially prevails in FOIA

litigation, the court may award them fees. While “entitlement” to fees is variable, depending on the circumstances of the request (see, e.g., Brayton v. Office of the

U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir.

2011) (discussing variable factors for assessing entitlement)), “eligibility” for fees flows from the sole question

of whether or not a complainant has substantially prevailed under the terms of the statute.

If Congress had intended to differentiate between

requesters regarding eligibility for fees, based on their

status as attorneys or otherwise, it would have

explicitly done so in the text of the statute. See Morgan

Stanley Capital Grp. Inc. v. Pub. Util. Dist. No. 1 of

Snohomish Cty., Wash., 554 U.S. 527, 557 (2008) (finding Congress’ use of the words “just and reasonable”

were meant to give an agency wide latitude and that if

Congress intended to impose constraints, it would have

done so in the express language of the act). For instance, FOIA provides differentiated treatment among

classes of requesters in regards to the ability of the

government to assess fees for copies of records, but that

differentiation is explicitly set out in the text of the

statute. 5 U.S.C. § 552(a)(4)(A)(ii) (limiting copy fees

government agencies can access to FOIA requests

made by representatives of the news media or other

individuals for non-commercial uses). FOIA’s attorney

fee-shifting provision, however, contains no such qualifying language.

The Fifth Circuit’s holding strains to avoid FOIA’s

plain language in order to bar a class of requesters—

self-represented attorney requesters—from fee eligibility, thus achieving a result not contemplated by the

statute. Allowing courts to re-write the statute in this

way negatively impacts FOIA compliance by improperly preventing a class of requesters from utilizing one

of its key accountability features.

In addition, the Fifth Circuit’s narrow definition of

“incurred” presents a slippery slope that will likely create barriers to an entire class of litigants, beyond selfrepresented attorneys, by sowing confusion about

whether requesters who use in-house counsel or who

are clients of pro bono attorneys have “incurred” attorneys fees in FOIA litigation, and are thus entitled to

recover them.

A robust fee provision is an important mechanism

for incentivizing attorneys to represent FOIA requesters and nonprofits like PRM in a reduced fee or

pro bono capacity. Unlike the Civil Rights Act and the

Equal Access to Justice Act (“EAJA”)—interpretations

of which the Fifth Circuit incorporates into FOIA—the

relief available under FOIA is limited. Whereas the potential for monetary relief under either the Civil

Rights Act or the EAJA incentivizes attorneys to undertake representation under contingent fee arrangements, the only relief available under FOIA is the

production of documents. See, e.g., 28 U.S.C. § 2412(c)

(explicitly providing any costs awarded under the

EAJA are to be in addition to any relief provided in the

judgment); Alexander v. Sandoval, 532 U.S. 275, 279

(2001) (providing private individuals may sue to enforce Title VI of the Civil Rights Act to obtain both injunctive relief and damages). Cf. 5 U.S.C. § 552(a)(4)(E)

(allowing fees and other litigation costs, but not providing for monetary damages). The Fifth Circuit’s attempt

to incorporate EAJA and Civil Rights Act precedent

into FOIA must be rejected in favor of FOIA’s unique

objectives of legislative history. See Fogerty v. Fantasy,

Inc., 510 U.S. 517, 522–25 (1994) (rejecting incorporation of Civil Rights Act fee-shifting precedent into

As a public interest nonprofit organization and

frequent FOIA requester interested in a vibrant and

functioning FOIA for all requesters, PRM asks the

Court to review this matter, and to reverse the Fifth

Circuit’s holding.

------------------------------------------------------------------

CONCLUSION

FOIA’s fee-shifting provision, as amended by the

2007 OPEN Government Act, serves a significant public accountability purpose by allowing requesters the

opportunity to seek fee and cost awards if they have

“substantially prevailed” during FOIA litigation with

the government. Under the statute, a requester who

has substantially prevailed is eligible for “reasonable

attorneys fees and costs” which “may be assessed” by

the courts.

The Fifth Circuit’s holding in Gahagan v. United

States Citizenship & Immigration Services, et al. ignores the plain language of the FOIA and bars selfrepresented attorneys from eligibility for attorney fees

under FOIA’s fee-shifting provision, effectively rewriting the statute to achieve a result not contemplated by Congress.

Given PRM’s mission of encouraging broad public

utilization of the FOIA (in addition to its own regular

use of the statute), PRM has an interest in ensuring

that the FOIA’s accountability features are kept

vibrant and available to public requesters. The Court

should grant the petition and reverse the Fifth Circuit

holding.

Respectfully submitted,

KATHERINE S. BARRET WIIK

Counsel of Record

BRIAN J. LINNEROOTH

BEST & FLANAGAN LLP

60 South Sixth St., Ste. 2700

Minneapolis, MN 55402

(612) 339-7121

kbarrettwiik@bestlaw.com

blinnerooth@bestlaw.com

Dated: August 14, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.