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First Look Media Works, Inc. v. U.S. Agency for Global Media, No. 20-3499, 2024 WL 4262773 (D.D.C. Sept. 23, 2024) (Kelly, J.)

Date

First Look Media Works, Inc. v. U.S. Agency for Global Media, No. 20-3499, 2024 WL 4262773 (D.D.C. Sept. 23, 2024) (Kelly, J.)

Re:  Request for records concerning U.S. Agency for Global Media (“USAGM”) policies surrounding visas and foreign employees, as well as certain communications concerning a variety of topics

Disposition:  Adopting magistrate judge’s report and recommendation; denying plaintiff’s motion for attorney fees and costs

  • Attorney Fees, Eligibility & Litigation Considerations, Constructive Exhaustion:  “[T]he Court will overrule Plaintiffs’ objection that they have established their eligibility for attorneys’ fees under 5 U.S.C. § 552(a)(4)(E) . . . .”  “Plaintiffs object to [the magistrate judge’s] recommendation that they are not eligible to recover attorneys’ fees because they failed to show that their lawsuit substantially caused USAGM to change its position about disclosure.”  “They say they are eligible for three reasons.”  “First, they note that USAGM only responded to their FOIA request after Plaintiffs filed suit.”  “It is well established, however, that ‘the mere filing of the complaint and the subsequent release of the documents is insufficient’ to establish fee eligibility.”  “Second, they point to the suddenness of USAGM’s response after the suit was filed.”  “Plaintiffs’ ‘sudden acceleration’ argument fails because they have not adequately shown either that USAGM’s delay was unexplained or that USAGM’s response accelerated because of this lawsuit.”  “Additionally, . . . Plaintiffs’ decision to file suit only fifty-five days after making their FOIA request undercuts any inference that USAGM had decided not to respond to the request or had forgotten about it.”  “Of course, substantial delays in this context are relevant because, if left unexplained, they can lead to a reasonable inference that the agency would not have complied with its FOIA obligations but for pressure generated by the lawsuit.”  “But not nearly enough time passed before Plaintiffs sued for the Court to draw such an inference.”  “Third, they argue that USAGM’s decision, after more delay, to provide email attachments that were initially excluded suggests that their suit caused the attachments’ production.”  “But to trigger eligibility for attorneys’ fees, FOIA plaintiffs still must prove that their suits caused an actual reversal in position.”      “Plaintiffs cannot point to anything similar here.”  “Most obviously, there is no evidence suggesting that USAGM ever affirmatively decided that it would not produce the email attachments.”  “To the contrary, in its initial response to Plaintiffs’ concerns that it had omitted the relevant attachments, USAGM asserted that it had ‘completed’ Plaintiffs’ request by ‘provid[ing] all potentially responsive records’ but also acknowledged that ‘Plaintiffs ha[d] concerns that attachments to emails are not appearing in the production.’”  “And while USAGM similarly asserted that ‘responsive attachments should appear in the production,’ it also hedged, asking for Plaintiffs’ help in identifying supposedly missing documents and promising that it ‘[was] looking into this issue.’”  “Then, after the missing attachments were identified, USAGM fixed its error.”      “Thus, this is hardly a case in which ‘the threat of an adverse court order’ explains the disclosure.”
Court Decision Topic(s)
District Court opinions
Attorney Fees
Litigation Considerations, Constructive Exhaustion
Updated November 6, 2024