WP Co. v. U.S. Dep't of State, No. 20-1082, 2020 WL 7248322 (D.D.C. Dec. 9, 2020) (Boasberg, J.)

WP Co. v. U.S. Dep't of State, No. 20-1082, 2020 WL 7248322 (D.D.C. Dec. 9, 2020) (Boasberg, J.)

Re:  Request for State Department unclassified cables concerning safety issues at laboratory in Wuhan, China, where researchers studied novel coronaviruses

Disposition:  Denying plaintiff's motion for attorney fees

• Attorney Fees, Eligibility:  The court holds that "the analysis begins and ends with eligibility."  The court relates that "[i]n brief:  [plaintiff] filed a FOIA request, the State Department did not timely produce a final response, [plaintiff] initiated this lawsuit, this Court set a deadline of roughly one month for State to make its response, and, one week before that deadline, State complied, producing the requested record to [plaintiff's] satisfaction."  The court relates that, first, "Plaintiff seems to contend that the Court's . . . Minute Order, which set a deadline for a final agency response to its FOIA request, rendered [plaintiff] a prevailing party in this suit."  However, the court finds that "'[a] favorable order,' though, 'does not make a plaintiff a prevailing party [under prong one] unless the order constitutes judicial relief on the merits resulting in a "court-ordered change in the legal relationship between the plaintiff and the defendant."'"  "An order that is 'procedural –  [e.g.,] conduct a search – as opposed to substantive – [e.g.,] produce documents' – does not qualify."  "The Minute Order here, which simply required the agency to respond to plaintiff's FOIA request, falls on the procedural side of that line."  Second, the court finds that "[a]side from the sequence of events, there is no reason to think that State would have failed to release the . . . cable had [plaintiff] not filed its lawsuit."  Responding to plaintiff's argument, the court finds that "if the agency had done nothing by [the date that it responded to plaintiff's Complaint] despite Plaintiff's filing over a month earlier . . . it is hard to see how the filing or prosecution of the suit could be said to have prompted a change in the agency's behavior."  "It would seem as likely, again, that State just continued along the path it had been on prior to the suit, processing and ultimately fulfilling Plaintiff's request 'as quickly as it could.'"  "At any rate, even if one rejects that view, [plaintiff's] argument still boils down to nothing more than timing:  State had not begun its work prior to the suit, then the suit was filed, and then State began the process that led to the cable's release."  "Concluding merely from those events that the lawsuit caused the cable's disclosure is post hoc ergo propter hoc reasoning, and in this context, '[c]ausation requires more than correlation.'"  "In short, then, [plaintiff] has not met its burden to demonstrate that its lawsuit was a but-for cause of the release of the April 2018 State Department cable."  "For completeness, the Court notes that Plaintiff has not made an expedition argument here – i.e., that regardless of whether its suit caused the release of a document that State otherwise would not have released, it at least caused its release to occur substantially more quickly."  "The Circuit has not ruled on whether an agency's speedier release of records can qualify as a 'voluntary or unilateral change in position,' . . . ."  "It is clear enough here, in any event, that [plaintiff] does not rely on this argument:  State contended as much in its opposition brief . . . and [plaintiff] did not dispute it on reply."