Naumes v. Dep't of the Army

1

SARAH KATHERINE NAUMES, Plaintiff, v. DEPARTMENT OF THE ARMY, Defendant.

Civil Action No. 21-1670 (JEB)

United States District Court, District of Columbia

July 5, 2023

MEMORANDUM OPINION

JAMES E. BOASBERG CHIEF JUDGE

In February 2019, Sarah Katherine Naumes submitted a Freedom of Information Act request to the Department of the Army seeking access to the entirety of its Global Assessment Tool (GAT) - a mental-fitness questionnaire for U.S. soldiers - as well as associated documents. The Army disclosed no documents to Naumes over the course of two and a half years of correspondence. She thus filed suit here, which precipitated the release of some material. Over the course of the litigation, Plaintiff obtained more records via both court orders and voluntary release by Defendant.

The merits litigation now completed, Naumes moves for an award of attorney fees and costs. Because she substantially prevailed in most of her suit and the multi-factor entitlement inquiry favors a fee award, the Court will grant her Motion in part. Plaintiff's requested sum, however, will be reduced based on her failure to prevail in certain phases of the litigation. The Court will ultimately award her $111,425.59.

I. Background

As a past Opinion details the full background of this suit, see Naumes v. Dep't of the Army, 588 F.Supp.3d 23 43 (D.D.C. 2022), the Court need only briefly recount the new facts relevant to the present Motion.

On February 28, 2019, Plaintiff filed a FOIA request seeking three categories of documents: all versions of the GAT questionnaire from 2008 through the present, all informed-consent forms associated with those questionnaires, and the list of recommendations given under the agency's ArmyFit portal. See ECF No. 1 (Compl.), ¶ 11. Such recommendations discuss how individuals can improve their mental and physical wellness - e.g., through practicing mindfulness and maintaining coping skills. See ECF No. 9-5, Exh. 104 (Samples of ArmyFit Recommendations).

Having vainly waited for two-and-a-half years to receive her requested documents, Naumes filed this suit on June 22, 2021. Finally spurred to action, the Army agreed on August 6 to release a first set of documents to her. See ECF No. 7-1 (Def. SMF), ¶¶ 12-13; ECF No. 916, Exh. 115 (First Document Disclosure). This release addressed the first two categories of requested documents - the GAT survey questions and informed-consent forms. There, the Army disclosed to Naumes 773 of the questions on the GAT, but withheld an additional 534 questions under FOIA Exemption 4, which protects privileged and confidential commercial information - in this case, copyrighted information. See First Document Disclosure at 2; ECF No. 7-3 (Declaration of Kathleen Vaughn-Burford), ¶ 8. All corresponding informed-consent forms were also produced since those forms are included with the surveys themselves. See Vaughn-Burford Decl., ¶ 5.

Another set of records responsive to the third category - the list of ArmyFit recommendations - was produced on October 23, 2021. See Samples of ArmyFit Recommendations at 2. These records were described as “sample[s]” of the recommendations and presented in a “file [that] included five pages, each containing a single screenshot of information, derived from [the] ArmyFit” portal. See ECF No. 10-1 (Declaration of Sarah Katherine Naumes Decl.), ¶ 54; Vaughn-Burford Decl., ¶ 10.

So far, so good. But Naumes at this point was still dissatisfied with the incompleteness of the recommendations disclosure; redactions on the GAT survey, on which 534 questions were withheld; and the fact that at least one of the GAT surveys and its accompanying informed-consent forms were missing. See ECF No. 9-1 (Naumes Opp. to First MSJ), ¶¶ 52, 54. Defendant nonetheless proceeded on October 26, 2021, to file a motion for summary judgment, which Naumes contested with her own motion for summary judgment. See ECF No. 7 (Def. MSJ); Naumes Opp. to First MSJ; ECF No. 10 (Naumes Cross MSJ).

On February 28, 2022, this Court issued an Opinion that granted in part and denied in part the motions. See Naumes, 588 F.Supp.3d at 30-31. It agreed with Plaintiff that the ArmyFit recommendations disclosure was incomplete, but ruled that Defendant was only obligated to release some and not all requested documents. On the issue of survey redactions, the Court concluded that the best way to solve the Exemption 4 dispute was to ask the copyright holders themselves whether they would consent to the release of their sets of questions, known as “scales.” As to the missing GAT survey, the Court held, “Despite the confusion about the different categories of the GAT, Defendant has described a good-faith effort to identify this document” and thus had no duty to further search. Id. at 36. The Court also declined to penalize the Army despite Plaintiff's claim that it had “violated FOIA's statutory time requirements.” Id. at 33 (quoting ECF No. 9-20 (Memorandum in Support) at 9).

The Court then ordered the following remedy:

[B]y March 14, 2022: 1) the Army [shall] search for and release the pages offering Spiritual, Family Fitness, Social Fitness, and Physical Fitness Dimension Recommendations linked to in the records already provided; 2) release the GAT survey questions that derive from sources available to the general public; 3) contact the copyright holders for the questions from the remaining non-public source materials and inform the Court as to their position on release; and 4) provide supplemental briefing on how the GAT survey questions are assembled from the underlying sources.

Naumes, 588 F.Supp.3d at 43.

On May 10, 2022, the Army proceeded to contact the copyright holders. All permitted the release of the questions, with the exception of Dr. Nansook Park, who holds three of the fourteen copyrights. See ECF No. 23 (Dep't of Army Status Report). Those not belonging to Dr. Park were released. See ECF No. 35-2 (Fourth Naumes Decl.), ¶ 10. Defendant then renewed its Motion for Summary Judgment, again contending that it had released all possible documents. Naumes opposed, arguing that Dr. Park's three scales were still not subject to the Exemption 4 shield. See ECF No. 28 (Naumes Opp. to Second MSJ) at 1. On December 19, 2022, this Court granted the Motion and entered judgment for the Army. See ECF No. 32 (Order on Ren. MSJ).

With the merits of the litigation now terminated, Plaintiff has filed this suit to recover attorney fees.

II. Legal Standard

FOIA provides that courts “may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case . . . in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i); see Brayton v. Off, of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011). “This language naturally divides the attorney-fee inquiry into two prongs, which our case law has long described as fee ‘eligibility' and fee ‘entitlement.'” Brayton, 641 F.3d at 524 (quoting Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006)). Plaintiffs are “eligible” to receive fees if they have “substantially prevailed.” Id.; Negley v. FBI, 818 F.Supp.2d 69, 72-73 (D.D.C. 2011). In such a circumstance, the court must then “consider[] a variety of factors” to determine whether they are “entitled” to fees. Brayton, 641 F.3d at 524-25; see also Davy v. CIA, 550 F.3d 1155, 1158-59 (D.C. Cir. 2008). If plaintiffs are both eligible for and entitled to receive fees, the court proceeds to “analyze whether the amount of the fee request is reasonable.” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 811 F.Supp.2d 216, 237 (D.D.C. 2011).

III. Analysis

Given that framework, the Court will first determine whether Naumes may receive fees; finding that she may, it next assesses whether she should receive them. Last the Court determines the precise amount of fees that should be awarded, looking at both the merits and the fee litigation.

A. Eligibility

A FOIA “complainant has substantially prevailed” and is consequently eligible for a fee award if it “has obtained relief through either - (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). Plaintiff invokes both subsections as the basis for her fee request. While the former is largely self-explanatory, the key question under the latter, aptly named the “catalyst theory,” is whether “the institution and prosecution of the litigation cause[d] the agency to release the documents obtained during the pendency of the litigation.” Church of Scientology of Cal. v. Harris, 653 F.2d 584, 587 (D.C. Cir. 1981); see also Davis v. DOJ, 610 F.3d 750, 752 (D.C. Cir. 2010) (“FOIA plaintiffs [are] eligible for a fee award if the lawsuit substantially caused the agency to release the requested records,” regardless of whether the plaintiff obtained any court-ordered relief.).

Defendant makes two main arguments for reducing attorney fees based on eligibility. It first contends that Naumes may recover no fees for her failed Opposition to the second Motion for Summary Judgment. See ECF No. 36 (Opp. to Fee Mot.) at 7. Defendant also more broadly argues that Plaintiff did not substantially prevail on all issues and so her remaining fees must be cut by 50%. Id. The Court looks at each in turn.

1. Success in Second MSJ

Begin with Defendant's contention that Plaintiff cannot recover any attorney fees on her second Motion for Summary Judgment. See Opp. to Fee Mot. at 7. The Court agrees with Defendant's position on this matter. On December 19 2022, it granted Defendant's Motion, finding that the agency properly...