Wadelton v. Dep't of State

JOAN WADELTON, et al, Plaintiffs, v. DEPARTMENT OF STATE, Defendant.

Civil Action No. 13-cv-412 (TSC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 30, 2018

MEMORANDUM OPINION¹

Plaintiffs Joan Wadelton and the news website Truthout filed suit under the Freedom of Information Act ("FOIA") against the Department of State ("State"), seeking to compel the release of records relating to Wadelton's tenure at the agency. After several years of litigation and several rounds of briefing, this court entered summary judgment in favor of State on September 22, 2016. Plaintiffs request attorney's fees based primarily on the court's denial of State's proposed disclosure schedule and the denial of State's first motion for summary judgment. For the reasons set forth below, the court will GRANT Plaintiffs' fee petition in part, and DENY the petition in part.

I. BACKGROUND

Wadelton joined State in 1980 and worked her way up to the highest rank short of the Senior Foreign Service. Compl. ¶ 7. She alleges that State's Bureau of Human Resources ("HR") began treating her unfairly around 2000 when she learned that HR planned to "remove" her from her position. She protested and later filed a complaint with the Office of Inspector General ("OIG") about alleged abuses by HR. Id. ¶¶ 14-18. Wadelton claims that because of her complaints—despite having outstanding performance reviews—she suffered retaliation, including reduction of responsibilities, HR's submission of her incomplete personnel file to authorities considering her for promotion, and threats to force her into involuntary retirement. Id. ¶¶ 18-19, 22. Wadelton responded by filing grievances with the Foreign Service Grievance Board ("FSGB") which ordered State to reconsider her for some of the promotions she had unsuccessfully sought. Id. ¶¶ 20-28.

Wadelton claims that during her employment at State, she collected evidence demonstrating that the treatment she received from HR was just one example of widespread misconduct. Id. ¶ 15. She sought to prove that several high-level HR managers were manipulating the selection board promotion process to benefit themselves and their allies. Id. To that end, Wadelton provided Congressional representatives with information about HR's activities, after which several representatives became involved, and the Government Accountability Office announced an impending investigation. Id. ¶¶ 33-39. Wadelton also lodged additional complaints with the OIG on multiple occasions, and she claims OIG ultimately issued a report criticizing HR's procedures and accusing the department of mismanagement and falsifying information. Id. ¶¶ 31, 35.

Consistent with the directive from the FSGB, State reconsidered Wadelton for some of the promotions she had sought, but refused to reverse its prior decisions. Id. ¶¶ 34-35. Wadelton then sued the agency in January 2011. See Wadelton v. Clinton, 11-cv-49-BJR (D.D.C.).² State terminated her several months later in March 2011, allegedly in retaliation for her whistleblowing activities. Compl. ¶¶ 14-40.

In July and October of the following year, Wadelton submitted three separate FOIA requests to State, seeking records pertaining to her employment. Wadelton v. Dept. of State, 941 F. Supp. 2d 120, 121 (D.D.C. 2013). Specifically, she sought records from three departments within the agency: (1) the HR department, (2) the Office of Legal Advisor ("L"), and (3) the Under Secretary of Management ("M"). Id.

On January 29, 2013, State informed Wadelton that it had identified eighteen responsive records from M and agreed to release eight records in full, but was withholding six records in full and would coordinate with other offices regarding the remaining four records. Compl. ¶ 63. State did not inform Wadelton whether it had searched and/or identified records located in the L and HR offices. See id. ¶¶ 47-63.

On February 4, 2013, Wadelton's attorney wrote State requesting expedited processing and informing the agency that Truthout would be joining Wadelton's FOIA requests. Id. ¶¶ 49, 56, 64. After failing to obtain the relief they sought and exhausting all administrative remedies, Plaintiffs filed a Complaint and a Motion for Preliminary Injunction, seeking expedited processing of the FOIA requests on April 1, 2013 (nine months after the first FOIA request). Id. ¶¶ 51, 58, 65-67; ECF Nos. 1, 3.

On April 25, 2013, the Judge previously assigned to this case denied Plaintiffs' motion for a preliminary injunction. 4/9/2013 Minute Order; Wadelton, 941 F. Supp. 2d 120. State subsequently released the remaining records from the active M files and identified over 6,000 potentially responsive pages from the L files, as well as roughly 3,500 potentially responsive pages from HR. ECF Nos. 16, 18. In light of the number of potentially responsive pages, the need to review "retired" M files, and a multi-layered review process, on July 1, 2013, State sought a production schedule requiring review of 700 pages per month over a nineteen-month period. ECF No. 16. State explained that the analyst assigned to review the retired M files was doing so on a "part-time basis" because of competing responsibilities in other cases. Id. p. 4. Further, all records produced were subject to a second level of review, normally conducted by retired Foreign Service officers working on a part-time basis. Id. Moreover, because discovery in Wadelton's promotion lawsuit was ongoing, documents had to be reviewed for privilege by the Legal Advisor's office before being produced. Id.

Plaintiffs objected to State's proposed schedule for several reasons. First, they argued that an Open America Stay³ was appropriate, rather than the briefing schedule State hadproposed, because of the extended period State needed to finish processing the records. Plaintiffs argued that State was attempting to circumvent the normally high standard of proof required for an Open America stay by simply requesting an extended briefing schedule.

Next, Plaintiffs asserted that State had not shown it was incapable of reviewing more than 700 pages per month, and that the multiple sequential levels of review were unnecessary. Plaintiffs noted that State had released only sixteen documents (totaling forty-eight pages) during the prior three months, and withheld twenty-five pages, and thus had not demonstrated any real effort to process the records at the proposed 700-page monthly rate. Plaintiff therefore asked the court to order State to complete review and production of non-exempt records in six months, by December 31, 2013, and to file its dispositive motion on or before January 17, 2014.

The court found that sequential reviews were unnecessary, explaining that State was going to have "to do it simultaneously instead of wait and wait . . . ." ECF No. 73, Aug. 29, 2013 Tr. pp. 14-17. Accordingly, the court ordered State to complete production of the HR and M records by March 31, 2014, almost a year earlier than State's proposed deadline. Id.; ECF No. 26. The court also advised State to reallocate employees to finish the project if necessary, noting that "[i]t would have been better if this thing had gone on faster long ago." Aug. 29, 2013 Tr. pp. 19, 22-23.

State met its deadline with respect to the HR and M records, after which the court held a status conference on June 10, 2014, to set the deadlines for producing the L records and a briefing schedule. The court agreed to State's production deadline of February 2, 2015 for the L records but rejected its request for a single round of briefing and instead set a deadline for thefirst round of briefing on the already released records. The case was then transferred to the present Judge.

During the first round of briefing, State completed production of the L records, but the parties were unable to agree on a production schedule for the second round of motions. ECF No. 50. After argument and additional briefing, the court ordered State to file its motion earlier than it had requested. April 15, 2015 Min. Order.

Shortly thereafter, the court denied State's first motion for summary judgment because the agency had not provided enough information in its declarations for the court to resolve issues regarding the adequacy of the search and the segregability of released documents. Wadelton v. Dep't of State, 106 F. Supp. 3d 139 (D.D.C. 2015). State then asked the court to allow supplemental briefing on the deficiencies identified in the court's Memorandum Opinion and allow the agency to combine this briefing with the briefing on the L records. ECF No. 57. Over Plaintiffs' objection, the court granted State's request and ordered it to file the supplemental motion by July 30, 2015. June 15, 2015 Min. Order. The court ultimately granted State's supplemental summary judgment motion. Wadelton v. Dep't of State, 208 F. Supp. 3d 20 (D.D.C. 2016).

Plaintiffs subsequently filed a fee petition requesting $18,511.50 in attorney's fees and $711.25 in costs. See ECF Nos. 67, 68.

II. ANALYSIS

Under FOIA, 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. § 522(a)(4)(E)(i). The fee inquiry is divided into two prongs,which this Circuit has long described as fee "eligibility" (whether the Plaintiff has "substantially prevailed" and thus "may" obtain fees), and fee "entitlement" (whether the court "should" grant the fee request). Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (citation omitted). If the court determines that a plaintiff is eligible for attorney's fees, the court then proceeds to the entitlement analysis to consider whether the facts warrant awarding fees. Elec. Privacy Info. Ctr. (hereinafter "EPIC") v. FBI, 72 F. Supp. 3d 338, 343 (D.D.C. 2014) (citing Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F. 3d 363, 368-9 (D.C. Cir. 2006)). "Congress, in...