Zynovieva v. U.S. Dep't of State

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OLENA ZYNOVIEVA, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.

Civil Action No. 19-3445 (RDM)

United States District Court, District of Columbia

March 31, 2023

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

This Freedom of Information Act (“FOIA”) case is again before the Court, this time on Plaintiff Olena Zynovieva's motion for attorneys' fees and costs. Dkt. 39. Because Zynovieva is neither eligible for nor entitled to fees and costs, the Court will DENY her motion.

I. BACKGROUND

Zynovieva is a Ukrainian citizen and resident of the United Arab Emirates. Dkt. 1 at 2 (Compl. ¶ 2). On August 16, 2019 she submitted a FOIA request to Defendant the U.S. Department of State, seeking all information in the Department's Consular Lookout and Support System (“CLASS”) database concerning herself, as well as all documents the Department possessed that she had submitted in connection with her past visa applications, from 2009 to the present. Id. (Compl. ¶ 6); Zynovieva v. U.S. Dep't of State, No 19-3445, 2021 WL 3472628, at *1 (D.D.C. Aug. 5, 2021). Three days later, the Department confirmed receipt and provided her a tracking number. Dkt. 1 at 2 (Compl. ¶ 7).

After hearing nothing for several months, Zynovieva reached out to the Department at the end of October. Id. at 3 (Compl. ¶¶ 8-9). Her attorney contacted the Department by phone on October 24, 2019, and the Department indicated that Zynovieva's request had been deemed “complex” and that no timeline had been established for providing a response. Id. (Compl. ¶ 9).

Several more weeks passed without word, so Zynovieva filed this lawsuit on November 15, 2019. Dkt. 1 (Compl.). She asked the Court to “order Defendant to disclose all records or portions thereof” to which she was “entitled under FOIA,” declare that she is “entitled to the disclosure of the requested records,” award her attorneys' fees and costs, and “provide further relief as it deem[ed] appropriate, just, and equitable.” Id. at 5. The Department timely answered on December 23, 2019. Dkt. 9.

On March 12, 2020, the Department finally responded to Zynovieva's request. Zynovieva, 2021 WL 3472628, at *1. It produced three records, all of which were “copies of visa application forms that [Zynovieva] had submitted to the Department in 2009, 2015, and 2016.” Id. Along with this production, the Department notified Zynovieva that it possessed other responsive records that it had not released. Id.; Dkt. 15-3 at 16 (Def.'s Ex. 2). With respect to these records, the Department provided a so-called “no number, no list” response. Zynovieva, 2021 WL 3472628, at *1; Dkt. 15-3 at 16 (Def.'s Ex. 2). As one might expect, a no number, no list response means that the Department did not say what other responsive records it had. Dkt. 15-3 at 16 (Def.'s Ex. 2). Rather, it stated only that it was withholding all such records under FOIA Exemption 3, which applies to records “specifically exempted from disclosure by statute”-here § 222(f) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1202. Zynovieva, 2021 WL 3472628, at *1 (quoting 5 U.S.C. § 552(b)(3)); Dkt. 15-3 at 16 (Def.'s Ex. 2).

The parties then cross-moved for summary judgment on the Department's remaining withholdings. Dkt. 15; Dkt. 16. The Department did not submit a Vaughn index-a detailed declaration describing the withheld documents and bases for the government's withholding-in support of its motion. Dkt. 15-3 at 6 (Stein Decl. ¶ 13). Instead, it submitted a declaration that listed thirteen “types of visa records” that the Department generally keeps and stated that “[t]he record(s) being withheld in this case each correspond to one of the document types” listed. Id. at 6-7 (Stein Decl. ¶¶ 13-14). The declaration further explained that providing additional information “about the number or content of withheld responsive records would reveal information that must be kept confidential” under the INA. Id. at 8 (Stein Decl. ¶ 18). Zynovieva argued in opposition that the Department had failed to carry its burden of demonstrating that the withheld records fell within the scope of 8 U.S.C. § 1202 and requested that the Court order the Department to provide a Vaughn index, so that the propriety of its withholdings could better be assessed. Zynovieva, 2021 WL 3472628, at *3.

The Court denied both motions for summary judgment. Id. at *1. It explained that although, “[a]s a general matter,” a Vaughn index “plays an important role in FOIA litigation,” Exemption 3 withholdings-the type at issue-“are sometimes amendable to more categorical treatment.” Id. at *3-4. However, the Court clarified, a “no number, no list” response only suffices in “unusual circumstances” and where a “particularly persuasive affidavit” accompanies it. Id. at *4 (quoting ACLU v. CIA, 710 F.3d 422, 433 (D.C. Cir. 2013)). Applying those principles, the Court held that the Department was “not necessarily required to produce a Vaughn index in this case,” nor was it “necessarily required to justify its Exemption 3 withholdings on a document-by-document basis.” Id. at *5. The withheld records, in other words, were “amendable to categorical treatment.” Id. Nevertheless, the Court concluded that the Department “ha[d] not yet done enough to justify its withholdings.” Id. Among other deficiencies, the Department had not explained who determined that the withholdings were necessary and appropriate and had not described the nature of the review that led to that determination. Id. at *6. The Court further noted that the Department had not adequately substantiated its justification for providing a no number, no list response: namely, that doing otherwise would reveal information protected by the INA. Id. at *7. In light of the possible permissibility of the Department's approach but its failure adequately to justify it, the Court offered the Department an opportunity to renew its motion. Id.

Taking up the Court's invitation, the Department renewed its motion for summary judgment several months later. Dkt. 26. But before briefing on the motion was complete, the Department changed course, withdrawing its renewed motion and noticing its intent to provide a draft Vaughn index to Zynovieva, Dkt. 31 at 1, which it ultimately did, Dkt. 32 at 1. After receiving the Vaughn index, Zynovieva opted to stop pursuing the case on the merits. Id.

Zynovieva now seeks an award of attorneys' fees and costs to the tune of $125,425. Dkt. 39 at 1. For the reasons explained below, the Court will DENY that motion.

II. ANALYSIS

Under 5 U.S.C. § 552(a)(4)(E)(i), the Court “may assess . . . reasonable attorney fees and other litigation costs reasonably incurred” by a FOIA plaintiff who “has substantially prevailed.” The test for an award of fees “has two components: eligibility and entitlement.” Gerhard v. Fed. Bureau of Prisons, 258 F.Supp.3d 159, 165 (D.D.C. 2017). “The eligibility prong asks whether a plaintiff has ‘substantially prevailed' and thus ‘may' receive fees.” Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (quoting Jud. Watch, Inc. v. U.S. Dep't of Com., 470 F.3d 363, 368 (D.C. Cir. 2006)). “If so, the court proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees.” Id. (emphasis in original). “To obtain attorneys' fees under FOIA, a plaintiff must satisfy” both prongs of the test. McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014). Moreover, if the plaintiff establishes that she is both eligible for and entitled to fees, she must demonstrate that the award sought is “reasonable.” See 5 U.S.C. § 522(a)(4)(E)(i); see also Elec. Priv. Info. Ctr. v. Dep't of Homeland Sec., 197 F.Supp.3d 290, 293 (D.D.C. 2016).

A. Eligibility

A plaintiff can “substantially prevail” in a FOIA lawsuit-and thus become eligible for fees and costs-in two ways: (1) through a court order that “constitutes judicial relief on the merits,” Campaign for Responsible Transplantation v. FDA, 511 F.3d 187, 194 (D.C. Cir. 2007), or (2) through “a voluntary or unilateral change in position by the agency,” as long as the requester's claim is “not insubstantial,” 5 U.S.C. § 552(a)(4)(E)(ii)(II). Only the second avenue to relief is at issue here.

This prong of the statute-requiring a voluntary or unilateral change in position by the agency-embodies what is called “catalyst theory.” Grand Canyon Tr. v. Bernhardt, 947 F.3d 94, 96 (D.C. Cir. 2020). The critical question under this theory of relief is whether the plaintiff's litigation “substantially caused the government to release the requested documents before final judgment.” Brayton, 641 F.3d at 524-25; see also Weisbergv. Dep't of Just., 745 F.2d 1476, 1496 (D.C. Cir. 1984) (“It is well established in this circuit that this inquiry is largely a question of causation.”). The plaintiff bears the burden of making this causal showing. Grand Canyon Tr., 947 F.3d at 97. To do so she must demonstrate that “it is more probable than not that the government would not have performed the desired act absent the lawsuit.” Id. (quoting Pub. Citizen Health Rsrch. Grp. v. Young, 909 F.2d 546, 550 (D.C. Cir. 1990)). “[T]he mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation,” Weisberg, 745 F.2d at 1496, and “‘[s]omething more than [p]ost hoc, ergo propter hoc' must be offered,” WP Co. LLC v. U.S. Dep't of State, 506 F.Supp.3d 11, 16 (D.D.C. 2020) (quoting Cox v. Dep't of Just., 601 F.2d 1, 6 (D.C. Cir. 1979)).

There is no bright-line rule defining just what it means to “substantially prevail” in a FOIA case under the voluntary or unilateral change in position provision. That said, the D.C. Circuit...