Hall & Assocs. v. EPA, No. 18-1749, 2023 WL 7928765 (D.D.C. Nov. 16, 2023) (Moss, J.)

Hall & Assocs. v. EPA, No. 18-1749, 2023 WL 7928765 (D.D.C. Nov. 16, 2023) (Moss, J.)

Re:  Request for records concerning EPA’s regulation of water treatment practice known as blending against the background of Eighth Circuit Decision impacting EPA’s practice in that circuit

Disposition:  Denying plaintiff’s motion for attorney fees and costs

• Attorney Fees, Eligibility:  “[T]he Court is persuaded that [plaintiff] 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 [plaintiff] substantially prevailed through a court order, it need not reach [plaintiff’s] alternative arguments.”  The court considers “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.”  “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.”  The court finds that “the minute entry at issue here resulted in [plaintiff] receiving the vast majority of the relief that it ultimately obtained.”  “Indeed, as discussed above, in the Court’s summary judgment decision, [plaintiff] 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 [plaintiff] received occurred during the early days of the litigation.”  “In other words, the relief that [plaintiff] obtained, as reflected in the minute entry, was substantial – and not merely peripheral or de minimis.”

• Attorney Fees, Entitlement:  The court holds that “[a]lthough [plaintiff] is eligible for fees, it is not entitled to them.”  Regarding the first entitlement factor, “the public benefit derived from the case,” the court notes that “[t]he 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, . . . ‘the public-benefit factor requires an ex ante assessment of the potential public value of the information requested,’ . . . 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.”  “After [all], ‘[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.’”  “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 [plaintiff] 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,’ . . . and, more importantly, [it had been] already held, as a matter of law, that the EPA’s November 19, 2013 Desk Statement constituted a policy of ‘intercircuit nonacquiescence,’”  “If [sic] follows that, unlike in some of its other FOIA cases, [plaintiff] 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.”  Additionally, regarding plaintiff’s other argument, the court finds that plaintiff “identifies no plausible basis to believe that its December 2017 FOIA request might uncover government misconduct of any kind.”  Regarding plaintiff’s “argu[ment] that the EPA’s internal discussions and communications with other regulators . . . was a matter of public interest,” the court finds that “[b]y the time [plaintiff] brought suit, it already possessed unredacted copies of [certain request documents].”  “It had also already received, through the EPA’s response to [plaintiff’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.”  “That said, the Court recognizes that there was a ‘decent chance’ that the litigation might reveal at least some information of marginal public interest.”  “It is unclear, however, how far that prospect advances [plaintiff’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.”  “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 [plaintiff] 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.”  “At its core, this case remains one in which the information sought was primarily (and perhaps only) of interest to a limited audience (principally [plaintiff’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 [plaintiff] submitted its FOIA request (and even longer before [plaintiff] brought this suit).”
  
  Regarding the second and third factors, “the commercial benefit to the plaintiff and the nature of the plaintiff's interests in the records requested,” “the Court finds that [plaintiff] 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 [plaintiff] fees.”  “[Plaintiff] is a private law firm, with municipal clients that are regulated entities engaged in the treatment of wastewater.”  “And here, from inception through the instant motion, [plaintiff] has stressed that it made this FOIA request and brought this lawsuit ‘for the benefit of and on behalf of [plaintiff’s] municipal clients.’”  “‘FOIA suits which are motivated by scholarly, journalistic, or public interest concerns are the proper recipients of fee awards.’”  “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, [plaintiff] argues that the ‘vast majority of [its] efforts were done pro bono and [plaintiff] only received minimal compensation from its municipal clients regarding the work done to successfully litigate this matter.’”  “[Plaintiff] 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.”  “But this case does not fit that model . . . .”
  
  Regarding the fourth factor, “the reasonableness of the agency’s withholding of the requested documents,” the court holds that “[o]verall, 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 [plaintiff’s] May 2016 request and then releasing many, but not all, of the previously redacted records.”  “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, . . . not long after [plaintiff] filed its complaint and just weeks after the initial scheduling conference.”  “[T]he bulk of the new information that [plaintiff] received as a result of its December 2017 FOIA request came in the first wave.”  “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 [plaintiff] 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.”  “[U]nlike some of [plaintiff’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 [a litigation concerning the underlying subject matter] and whether the EPA’s ‘earnestly held’ ‘view of the law’ was reasonable.”  “Rather, [plaintiff] itself agreed that this case was tied to [that other case] and itself agreed to wait until this Court issued its decision in [the other case].”  “[T]he Court finds that the only arguably relevant delay in the EPA’s response to [plaintiff’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 [the decision in the litigation concerning the underlying subject matter] then needed time to coordinate how it would litigate [another case regarding the underlying subject matter] and, finally, in this litigation, needed time to assess whether and how [the first case concerning the underlying subject matter] 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.”  “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 [plaintiff] challenged in its motion for summary judgment, was reasonable.”  “Indeed, the Court ordered the release of only one sentence in [one document] and afforded the agency further opportunity to substantiate its withholdings with respect to three other documents . . . .”  “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.”  “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.”
  
  “None of the four entitlement factors ‘is dispositive.’”  “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 [plaintiff] is entitled to an award of attorneys’ fees.”