WEEK OF OCTOBER 15-19

District Courts

1. National Security Counselors v. CIA, Nos. 11-443, 11-444, 11-445, 2012 WL 4903377 (D.D.C. Oct. 17, 2012) (Howell, J.)

Re: Action involves challenges to both specific denial of records (over various requests) as well as twelve overarching policies and practices of the CIA that are alleged to violate the FOIA

Holding: Concluding that plaintiff has standing to pursue certain claims under FOIA and the APA; granting CIA's motion to dismiss on certain claims and denying CIA's motion to dismiss for certain claims

• Standing: The court "holds that the plaintiff's Assignment is valid and enforceable, and therefore the plaintiff has statutory standing to assert the claims." The case law reasons that "courts should treat FOIA claims like claims to tangible property unless doing so would contravene public policy or undermine the 'institutional interests' of the judiciary in regulating which parties have standing to sue." While "the Court certainly agrees… that the identity of a FOIA requester is relevant to certain aspects of the processing of the request[,]…the Court does not agree that these concerns warrant a blanket prohibition against the assignment of FOIA requests." Other courts were "concerned that this validation process would constitute an 'unreasonable' burden on busy FOIA administrators"… but "[t]he burden imposed by requiring an assignee to file a new request and wait at the back of the FOIA line is not 'minimal' in most cases." The court concludes that "the burden imposed on FOIA administrators from processing assigned requests is unlikely to become 'unreasonable,' and may in fact be more efficient than the alternative."
  
  The court partially rejects the CIA's assertion that "the plaintiff lacks standing to assert [] policy-or-practice claims because the plaintiff has not sufficiently alleged a future injury that would confer standing." The court finds that "because no mere mortal has the ability to see into the future, the plaintiff is only required to put forth a plausible, 'more than…nebulous' assertion of the existence of an ongoing pattern or practice to establish standing, and the plaintiff has done so here." The plaintiff has demonstrated that he has pending FOIA requests and that "these ongoing actions and stated intentions to take future action are likely to implicate the claimed policies and practices at issue." There is one exception; "plaintiff's factual allegations, in support of the claim that the CIA continues to refuse to provide estimated dates of completion since the promulgation of its November 2010 informal guidance, relate solely to FOIA requests filed by other parties." The court concludes "plaintiff has no standing to bring its claim challenging [the estimated date of completion] policy."

• Administrative Procedure Act: The court concludes "where a plaintiff claims that an agency has wrongfully withheld agency records in connection with discrete FOIA requests, an APA claim seeking compelled disclosure of the withheld records is precluded." "[A]lthough the language of the FOIA could be read strictly to limit the equitable powers of federal courts to enjoining the agency from withholding records…, the D.C. Circuit and the Supreme Court have interpreted those equitable powers more broadly." With the exception of the claims that "allege a policy or practice of the CIA of violating its own FOIA regulations," "APA relief is foreclosed" for the other claims "because the FOIA itself can provide the plaintiff with an adequate equitable remedy."
  
  The court dismisses the one claim considered under the APA, concluding that "individual refusals by the CIA to 'work with' requesters [as defined by the defendant's regulations] may be subject to challenge within the framework of the APA,"… but at a broader policy level, the plaintiff has failed to allege a 'final agency action,' and thus the plaintiff's APA challenge … will be dismissed for failure to statue a claim."

• Mandamus Relief: The court concludes that "[e]ven if the plaintiff had not conceded its failure to plead claims for relief under the Mandamus Act, however, the mandamus claims would still be appropriately dismissed because the plaintiff's FOIA claims would provide an adequate remedy for all of the policies or practices for which the plaintiff seeks relief under the Mandamus Act."

• Record Creation: The plaintiff sought "database listings sorted by various criteria." The court finds that when responding to a request for "aggregate data," an agency "need not create a new database or reorganize its method of archiving data," but also notes that "searching that database does not involve the creation of a new record." The court continues that "sorting a pre-existing database of information to make information intelligible does not involve the creation of a new record." "[I]t is just another form of searching that is within the scope of an agency's duties in responding to FOIA requests." However, a request for a "listing or index of a database's contents that does not seek the contents of the database, but instead essentially seeks information about those contents, is a request that requires the creation of a new record, insofar as the agency has not previously created and retained such a listing or index." After analyzing the issue, the court concludes that the plaintiff's claim regarding the existence of a policy and practice concerning database listings is insufficient because it is based on a single request which "could just as easily have been an isolated incident."

• Reasonably Described Records: The plaintiff alleges that the defendant has a policy or practice of "applying a definition of the FOIA's 'reasonably describes' requirement that 'is significantly and consistently broader than is allowed by the FOIA.'" The court determines that the "FOIA permits agencies to consider the configuration of their record systems in deciding whether a FOIA request 'reasonably describes' the records sought" because "[i]t would be unreasonable to require agencies to throw practical considerations to the wind in deciding whether they can process FOIA requests." Additionally, "short of a categorical refusal to process any requests that contain the[] phrases ["pertaining to," "related to," or "relating to"], an agency is permitted to assess the language of each FOIA request that it receives in order to determine whether it 'reasonably describes' the records it seeks."

• Adverse Determination: The court concludes that "the FOIA does not require agencies to provide administrative appeals on the issue of whether a request is proper in the first place" because "an agency has no duty to make any 'determination' with regard to a FOIA request unless that request is proper."

• Procedural/Searching for Responsive Records: The court denies the CIA's motion to dismiss with respect to the plaintiff's challenge to CIA's cut-off date policy. The court notes that "determining the reasonableness of an agency's categorical cut-off date for running FOIA searches is particularly inappropriate at the motion to dismiss stage because the CIA has not yet submitted any affidavits or other proof that would support its argument that an across-the-board cut-off date is reasonable." The CIA will be afforded an opportunity to provide additional information regarding the policy.

• Procedural/Responding to FOIA Requests: The court grants the CIA's motion to dismiss on plaintiff's claim regarding the "policy of never identifying documents withheld in their entirety." The court concludes that the plaintiff "fails to state a cognizable claim under the FOIA" noting that "this Court held that '[t]he plain text of the [FOIA] does not require agencies to provide a list of withheld documents, but only to make a reasonable effort to estimate the volume of the documents withheld.'"

• Procedural/"Reasonably Segregable" Obligation: The court denies the CIA's motion to dismiss on plaintiff's challenges to the CIA's exemption marking policy. Plaintiff alleges the existence of "a publicly available CIA training manual, which states that 'at initial and at appeal stage,' FOIA officials at the CIA need not 'put[] specific exemptions next to redactions.'" The court concludes that "[p]resuming as true the plaintiff's uncontested allegations that the CIA training manual represents an official CIA policy, that policy runs roughshod over… statutory language by applying a blanket presumption that exemptions need not be specified 'next to redactions.'"

• Procedural: The court grants the CIA's motion to dismiss plaintiff's claim that the defendant "reflexively and categorically withhold[s] all processing notes [of FOIA requests] and [FOIA] reference materials without actually assessing the material on a record-by-record basis." The court explains that the plaintiff "fail[s] to distinguish between consistent decisionmaking on the one hand and a lack of case-by-case consideration on the other." The facts alleged do not "plausibly suggest that the CIA has categorically exempted FOIA processing notes or reference material without a case-by-case consideration."

• Glomar: The plaintiff "complain[s] that, even when other federal agencies acknowledge the existence of responsive CIA records by referring FOIA requests to the CIA, the CIA has a policy of nevertheless issuing Glomar responses post-referral." The court dismisses this claim stating "the D.C. Circuit has clearly held that courts must apply the 'official acknowledgment' exception 'strictly,' such that the 'official acknowledgment' only extends to the specific records that are acknowledged by the agency." The court explains that the D.C. Circuit has held that acknowledgment is not "official" when it is made by another agency.

2. Rosenfeld v. DOJ, No. 90-3576, 2012 WL 4933317 (N.D. Cal. Oct.17, 2012) (Chen, J.)

Re: Determination of attorney fees and costs associated with a request for records pertaining to the University of California, particularly the political surveillance occurring during the 1950s and 1960s

Holding: Awarding costs and reducing the award of attorney fees to account for unrecoverable "monitoring" time, vague billing records, general inefficiency, and inflated requests for fees for this attorney fees and cost motion

• Attorney Fees and Costs: First, the court determines that the prior settlement agreements between the parties "expressly preserve Plaintiff's right to seek fees for 'all subsequent phases of the litigation.'" Therefore, the plaintiff may receive an award of attorney fees and costs for post-settlement activity. The plaintiff is eligible for attorney fees because "both parties acknowledge that [the plaintiff] 'substantial prevailed' in the portion of the case concerning Plaintiff's 2006 motion to challenge the FBI's compliance with the settlement agreement." The plaintiff is entitled to attorney fees because the requests "were undertaken for the express purpose of disseminating information about FBI activities during the Cold War via the news media," the plaintiff's "'interest in the information sought was scholarly or journalistic or public-oriented,'" and the defendant "failed to demonstrate that it had 'a colorable basis in law' for declining to produce the records requested by Plaintiff."
  
  However, "the Court finds that the time claimed for litigating this case is higher than what should have been 'reasonably expected.'" Plaintiff will not be awarded fees for "'time and effort to monitor and prod compliance' with the settlement agreement and rulings on the 2006 challenges." The court adjusts "Plaintiff's final fee award downward by ten percent" because the plaintiff "failed to demonstrate and document in the record that he exercised appropriate billing judgment to eliminate inefficiencies." The court finds that the plaintiff's "requested award for 'fees-on-fees' in this case is 'grossly inflated.'" "Given the substantial degree of overlap between this and a second fee motion filed by plaintiff, and the corresponding efficiencies Plaintiff's counsel should have realized in preparing and defending these motions against the same defendant on the same type of legal claim, the Court finds Plaintiff's requested fee award to be unreasonable and inflated." The plaintiff is awarded $105,166.32 for attorney fees, rather than $165,642.49 as requested, and $2,075.83 representing plaintiff's costs in this matter.

3. Rosenfeld v. DOJ, No. 07-3240, 2012 WL 4936047 (N.D. Cal. Oct.17, 2012) (Chen, J.)

Re: Determination of attorney fees and costs associated with a request for records pertaining to Ronald Reagan

Holding: Awarding costs and reducing the award of attorney fees to account for duplicative time, unsuccessful claims, and inefficiency

• Attorney Fees and Costs: "The record demonstrates both that [plaintiff's] suit against the FBI resulted in his receiving judicial orders granting the relief sought in his complaint, and that the suit acted as a 'catalyst' in prompting the FBI's 'voluntary unilateral changes in position' that resulted in the disclosure of documents he sought." The FBI does not dispute that a public benefit would result from the disclosure of these records and has not "shown that the records sought were otherwise available elsewhere." The court rejects the FBI's assertion that the "'Plaintiff has a financial incentive to pursue his [FOIA] request and litigation,'" relying upon the "unique treatment afforded journalists and scholars" in the entitlement test analysis. The court further notes that it "issued four separate orders in this case on the parties' motions for summary judgment [and t]he content of these orders reveal quite readily the unreasonableness of the government's rationale for withholding the records requested" by the plaintiff. The court concludes that the plaintiff has "demonstrated both eligibility for and entitlement to an award of attorney's fees."
  
  "The Court finds that Plaintiff has offered sufficient evidence to show that the proposed hourly rates for inclusion in the lodestar figure accurately reflect the hourly rates these individuals would likely receive in the San Francisco area legal market." Additionally, "in light of the contested and protracted nature of the suite, the Court finds that the total number of compensable hours incurred by Plaintiff is reasonable." Upon challenge from the defendant, the court subtracts "ten percent of the time claimed by both attorneys" to account for "unnecessarily duplicative and redundant hours spent resulting from multiple counsel performing overlapping work." The court deducts an additional ten percent "to account for time spent on unsuccessful claims" and takes another "ten percent 'haircut' to account for billing judgment." The Court finds "that the requested award for fees-on-fees… [is] excessive" and cuts 20% from the fees-on-fees request to account for "the high degree of duplication and lack of specificity in describing the activity." The plaintiff is awarded $359,548.78 for attorney fees, rather than $442,917.62 as requested, and $3,668.82 representing plaintiff's costs in this matter.

4. Fair Political Practices Comm'n v. USPS, No. 12-00093, 2012 WL 4953184 (E.D. Cal. Oct. 16, 2012) (Burrell, J.)

Re: Request for the quantity of mail sent by a USPS customer

Holding: Defendant's motion for summary judgment is denied; plaintiff's cross-motion for summary judgment is granted

• Exemption 3: The court concludes that 39 U.S.C. § 410(c)(2) does not "authorize the USPS to redact and withhold the quantity of mail sent by the permit holder." First the court "'assume[s] without deciding that 39 U.S.C. § 410(c)(2) qualifies as an Exemption 3 statute for purposes of th[e] [motions] and proceed[s] directly to the question whether the requested records fall within the scope of § 410(c)(2)." Section 410(c)(2) does not require the disclosure of "'information of a commercial nature… which under good business practices would not be publicly disclosed.'" The court narrows the question to "whether the amount of mail sent by a noncommercial entity in connection with a noncommercial election is 'information of a commercial nature,' as that term is used" in the statute. The court finds that the defendant "has not shown that the requested information is within the realm of what is considered to be commercial information; nor has it shown how the disclosure of the requested numerical information could potentially impair the relationship between USPS and its customers."

5. Hajro v. USCIS, No. 08-1350-PSG, 2012 WL 4903475 (N.D. Cal. Oct. 15, 2012) (Grewal, Magistrate J.)

Re: Plaintiffs' motion for attorneys' fees after prevailing on eight of nine claims regarding the processing of requests for alien registration files; Claims One and Two "concern violations of the Settlement Agreement." Claim Three relates to defendants' untimely response to plaintiff's request. Claim Four relates to defendants' "untimely explanation under FOIA of Defendants' decision not to expedite [plaintiff's] request. Claim Five relates to defendants' "pattern or practice of violating FOIA's time limits." Claim Six relates to defendants' "withholding documents in violation of FOIA." Claim Seven relates to a violation of due process. Claim Eight relates to a violation of the Administrative Procedure Act. Claim Nine relates to plaintiffs' unsuccessful argument that "Defendants' policy violated the Equal Protection Clause."

Holding: Granting in part plaintiff's motion for attorneys' fees

• Procedural: The court rejects defendants' request that the court postpone issuing a decision on plaintiff's motion for attorneys' fees until after defendants' appeal is resolved. The court notes that "[p]laintiffs have prevailed on all but one of their claims. In light of [p]laintiffs' success in this court and the potential loss of post judgment interest that would occur absent an order regarding attorneys' fees, the court will not postpone [p]laintiff's motion."

• Attorney Fees: The court finds that although Section 552(a)(4)(E) only applies to Claims One through Six, plaintiffs may also recover for Claims Seven through Nine because they "are related to the eligible claims."
  
  First, the court analyzes whether the fee provision of the statute, 5 U.S.C. §552(a)(4)(E), applies to each of the plaintiff's nine claims. The court divides the claims into three groups. Claims Three through Six are direct causes of action under the FOIA. Accordingly, the court determines that these three claims all fall clearly within the attorney fee provision. Claims One and Two concern violation of the Settlement Agreement obtained by one of the two plaintiffs in a 1992 FOIA suit. The court determines that because the present case was brought to ensure compliance with the agreement and the plaintiff was monitoring the defendant's compliance, the plaintiff "is permitted to recover attorneys' fees under FOIA's provisions." Finally, Claims Seven through Nine concern due process rights and whether the Defendants violated the Administrative Procedure Act or the Equal Protection Clause. "Because [p]laintiffs have provided no case law that supports their broad reading of Section 552(a)(4)(E) and because the legislative history lends no further support to their interpretation, the court declines [plaintiffs'] invitation to read expansively the recovery permissible under Section 552(a)(4)(E)."
  
  Afer establishing that Section 552(a)(4)(E) applies to Claims One through Six, the court decides that the plaintiff is eligible for attorneys' fees for all six claims. The court reiterates that "monitoring compliance is sufficient to warrant an award of attorneys' fees." Since plaintiffs have substantially prevailed with regard to Claims One and Two, they are eligible for an award of attorneys' fees. Likewise, plaintiff obtained a favorable judicial order with respect to Claims Three and Four. This also satisfies the threshold eligibility requirement for fees. Similarly, the plaintiff prevailed on Claim Five and obtained "injunctive relief requiring [d]efendants to end [a] pattern and practice of violating FOIA." Finally, with regard to Claim Six, the court finds that the plaintiff "significantly altered the relationship between him and [d]efendants." The plaintiff "obtained an injunction requiring [d]efendants to isolate and furnish documents relating to his false testimony, which in turn resulted in [d]efendants' admission that documents with the facts he requested did not exist."
  
  Turning next to the public benefit analysis, the court finds that there is a public benefit from the action brought by plaintiff for all eligible claims but Claim Six. "By obtaining injunctive relief mandating [d]efendants comply with its obligations under the Settlement Agreement and FOIA, [p]laintiffs have benefitted other applicants seeking records to aid in disputes with [d]efendants. [Accordingly,] [t]he public benefit factor weighs in favor of awarding fees for Claims One, Two, and Five. With regard to Claims Three and Four, although plaintiff sought injunctive relief for his own benefit, the court determines that there is still a public benefit because the injunctive relief "also established that in cases where due process concerns arise, such as citizenship status proceedings, [d]efendants must expedite their decisions on FOIA requests." The court finds no public benefit for Claim Six (withholding documents from plaintiff).
  
  Next, the court holds analyzes the commercial interest, if any in the claims as well as the nature of the plaintiffs' interest and decides that for Claims One, Two, and Five, there is no commercial interest and accordingly, for those claims, the analysis leans in favor of an award of fees. The court finds that for one plaintiff, a private citizen, "nothing in the evidence before the court suggests he has any commercial interest in pursuing [his] claims." In addition, although the other plaintiff is an immigration attorney, "by pursuing claims to correct patterns and practices violating FOIA, [he] obtained relief 'not just for himself, but also for other litigants and attorneys.'" However, for Claims Three, Four, and Six, the court notes that even though plaintiff has no commercial interest in the claims, his interest was purely personal and the personal nature of the claims militants against awarding attorney fees.
  
  In the final step of its analysis, the court addresses whether the government's position in withholding the records was reasonable. Weighing all four factors, the court concludes that the plaintiffs are "entitled to attorneys' fees for Claims One, Two, and Five." The court notes that plaintiffs established a "pattern and practice of violations" and that defendants did not assert that they "were in compliance with FOIA's time limits." For Claims Three Four, and Six, the reasonableness factor "weighs in favor of granting attorneys' fees." For Claim Six, even though there is a lack of a public benefit and the plaintiff has a private interest in the claims, the court decides to weigh "[d]efendants' unreasonable stance more heavily in light of the purposes of Section 552(a)(4)(E). Congress intended with the provision to incentivize plaintiffs to ensure open government and vindicate their rights by removing the obstacle of attorneys' fees."
  
  The court holds that the plaintiff can recover fees for the claims arising from the FOIA as well as the claims arising from claims to which the FOIA does not apply. "The due process, Equal Protection, and APA claims arose from Defendants' untimely response to Plaintiffs' requests for documents under FOIA. They share a 'common nucleus of operative facts' with the claims for the direct FOIA violations and for which Plaintiffs can recover attorneys' fees." The court declines to reduce the amount of fees because plaintiffs did not prevail on the Equal Protection claim. "Plaintiffs achieved their goals of enforcing the Settlement Agreement and obtaining an injunction requiring Defendants' compliance with FOIA's mandates despite the fact that they failed to prevail on the Equal Protection claim."
  
  As a final matter, the court analyzes the reasonableness of the attorney fee amounts claimed by the plaintiffs. The court examines the billing records submitted by plaintiffs and subtracts the "hours billed before the request" and "reduce[s] the hours for [certain] block-billed entries by twenty percent, the amount noted by the Ninth Circuit as the middle range for time increases" attributable to block-billing. The court also finds that the hourly rate of the attorneys was reasonable.

6. Sorodsky v. U.S. Attorney, No. 12-cv-4420, 2012 WL 4891697 (E.D.N.Y. Oct. 11, 2012) (Ross, J.)

Re: Plantiffs' assertion that defendants violated their FOIA rights through their "'illegal and unidentified investigation"

Holding: Dismissing plaintiffs' complaint filed in forma pauperis pursuant to 28 U.S.C. §§1915A(b) and 1915(e)(2)(B) for failure to state a claim and for lack of subject matter jurisdiction under Fed. R. Civ. 12(h)(3).

• Jurisdiction: The court dismisses plaintiffs' complaint for failure to state a claim and for lack of subject matter jurisdiction. The court holds that "plaintiffs have not alleged that they made a FOIA request" and "'[t]he FOIA provides a cause of action only to a requester who has filed a FOIA request that has been denied.'"