First Look Media Works, Inc. v. U.S. Agency For Glob. Media

• Court: U.S. District Court — District of Columbia
• Writing for the Court: TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
• Docket Number: Civil Action 20-3499 (TJK)
• Decision Date: 23 September 2024
• Citation: First Look Media Works, Inc. v. U.S. Agency For Glob. Media, Civil Action 20-3499 (TJK) (D. D.C. Sep 23, 2024)
• Parties: FIRST LOOK MEDIA WORKS, INC., et al., Plaintiffs, v. U.S. AGENCY FOR GLOBAL MEDIA, Defendant.

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FIRST LOOK MEDIA WORKS, INC., et al., Plaintiffs, v. U.S. AGENCY FOR GLOBAL MEDIA, Defendant.

Civil Action No. 20-3499 (TJK)

United States District Court, District of Columbia

September 23, 2024

MEMORANDUM OPINION

TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

Following a satisfactory production of documents in this Freedom of Information Act case, Plaintiffs First Look Institute, Inc. and Lee Fang moved for attorneys' fees and costs under 5 U.S.C. § 552(a)(4)(E). The Court referred that motion to Magistrate Judge Moxila Upadhyaya, who prepared a Report and Recommendation concluding that the motion should be denied. Plaintiffs timely objected. For the reasons explained below the Court will overrule Plaintiffs' objections, adopt the R&R in full, and deny Plaintiffs' motion for fees and costs.

I. Background

A. Factual Background

In mid-2020, former President Donald Trump appointed Michael Pack as head of the U.S. Agency for Global Media (“USAGM”), a federal agency tasked with supervising various government-sponsored news services, including Voice of America. ECF No. 1 at 2. A sharp uptick in FOIA requests to USAGM followed, in part, it appears, due to allegations that Pack politicized USAGM's operations and undermined the foreign nationals working at Voice of America. Plain-tiffs-all associated with the Intercept, an investigative news outlet-filed their FOIA request with USAGM on October 7, 2020, just a few months after this uptick began. Id. at 8. In it, Plaintiffs sought ten broad categories of documents dated from January 1, 2018, to the date of response. ECF No. 41-1 at 3-5. Though many focused on USAGM's policies surrounding visas and foreign employees, that focus was not exclusive. One category of requested documents, for example, sought

[d]ocuments comprising, reflecting or relating to communications between Michael Pack or any other employee of USAGM or VOA, on the one hand, and Steve Bannon, President Donald J. Trump, or any member or representative of the White House staff concerning or relating to (i) the employment, or use of the services of, foreign journalists by VOA or USAGM, (ii) the editorial policies or practices of VOA, (iii) VOA's coverage of any news item(s) or event(s), including without limitation the Covid 19 pandemic, the 2020 presidential campaign or any candidate for President of the United States, or VOA's Urdu news service, and (iv) the termination, replacement or appointment of upper management employees of VOA and/or USAGM.

Id. at 5. This was not the only large-volume request USAGM received around this time. Id.

Following Plaintiffs' request, they heard little from USAGM. They followed up on No vember 10, 2020, but the Agency could not confirm that it had even received the FOIA request. ECF No. 40-1 at 9 n.2. But about a week later, a representative from USAGM called Plaintiffs to confirm that their request had been received. Id.

B. Procedural History

Plaintiffs, unwilling to await further action by USAGM, sued under the Freedom of Information Act, or FOIA, on December 1, 2020, to compel the production of responsive records. ECF No. 1. Just under a month later, USAGM answered, admitting that it had “not made a final determination regarding Plaintiffs' FOIA request.” ECF No. 6 at 2, 6. A few weeks later, on January 26, 2021, the parties submitted a Joint Status Report, in which USAGM proposed a 500-page-per-month production schedule that would begin on February 8, 2021. ECF No. 12 at 1-2. USAGM then met and exceeded that proposed schedule, releasing 7,714 pages of documents between February 8 and December 8, 2021. ECF No. 41 at 9. Still, a second round of production was required after Plaintiffs discovered in January 2022 that USAGM had failed to include all the attachments to responsive email records. Id. Though USAGM first contended that it had completed its search and had provided all responsive documents, see ECF No. 26 at 2, it later conceded that “not all attachments were included in USAGM's productions,” ECF No. 30 at 2. Following a five-monthlong delay where USAGM's staff dealt with other matters, it disclosed those attachments to Plaintiffs between May 31 and October 28, 2022. ECF No. 41 at 10.

A year later, Plaintiffs filed the instant motion, seeking nearly $225,000 in costs and attorneys' fees. ECF No. 40. USAGM responded, arguing that Plaintiffs were neither eligible nor entitled to fees and that, in the alternative, the fees calculated by Plaintiffs were unreasonable. ECF No. 41. The Court referred the matter to a Magistrate Judge Upadhyaya for an R&R, which she prepared. Her R&R recommends that the Court deny the motion because Plaintiffs have failed to establish their eligibility for fees under FOIA's governing provision. See ECF No. 46. Plaintiffs timely objected. See ECF No. 47.

II. Legal Standards

Section 552(a)(4)(E) of FOIA provides courts with discretion to “assess against the United States reasonable attorney fees and other litigation costs reasonably incurred” during a FOIA lawsuit “in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). To recover attorneys' fees and costs, a plaintiff must show both eligibility for and entitlement to a fee award. See, e.g., Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011).

As relevant here, a plaintiff has “substantially prevailed” under FOIA when he has obtained relief through “a voluntary or unilateral change in position by the agency.” 5 U.S.C. § 552(a)(4)(E)(ii). This option, known as the “catalyst theory,” permits FOIA plaintiffs to “prove fee eligibility by showing that [their] lawsuit ‘substantially caused the government to release the requested documents before final judgment.'” Grand Canyon Tr. v. Bernhardt, 947 F.3d 94, 96 (D.C. Cir. 2020) (quoting Brayton, 641 F.3d at 524-25). In other words, “the question under the ‘catalyst theory' is whether the institution and prosecution of the litigation caused the agency to release the documents obtained.” Id. at 97 (cleaned up) (quotations omitted). A “plaintiff has the burden of showing ‘that it is more probable than not that the government would not have [produced the desired documents] absent the lawsuit.'” Id. (quoting Pub. Citizen Health Rsch. Grp. v. Young, 909 F.2d 546, 550 (D.C. Cir. 1990)). Courts analyze the totality of the circumstances to determine whether “the circumstances surrounding disclosure” support finding a “‘causal nexus' between the commencement of the lawsuit and an agency's disclosures.” Env't Def. Fund v. U.S. Env't Prot. Agency, No. 17-CV-02220 (APM), 2022 WL 136792, at *4 (D.D.C. Jan. 13, 2022) (quoting Grand Canyon Tr. v. Zinke, 311 F.Supp.3d 381, 389 (D.D.C. 2018)).

Upon reviewing an R&R prepared by a magistrate judge, the Court “must determine de novo” any part of it to which a proper objection is made. Fed.R.Civ.P. 72(b)(3); LCvR 72.3(c). The Court reviews only for clear error any part of the R&R that is not objected to or that is objected to merely in a “general” and “conclusory” fashion. See IMAPizza, LLC v. At Pizza Ltd., No. 17-cv-2327 (TJK) (GMH), 2021 WL 3168132, at *2 (D.D.C. July 27, 2021); Wu Xiaofeng v. Pompeo, No. 15-cv-1040 (EGS), 2019 WL 1697868, at *5 (D.D.C. Apr. 17, 2019). “Clear error exists only when the reviewing court is left with the definite and firm conviction that a mistake has been committed.” Momoh v. Osayande, 564 B.R. 1, 3 (D.D.C. 2017) (internal quotation marks omitted). Also, when objecting to an R&R, “the parties may not present new issues or arguments to the district judge.” IMAPizza, LLC, 2021 WL 3168132, at *2 (internal quotation marks omitted); see also Aikens v. Shalala, 956 F.Supp. 14, 19 (D.D.C. 1997). The Court “may accept, reject, or modify the recommended disposition.” Fed.R.Civ.P. 72(b)(3).

III. Analysis

Plaintiffs object to Magistrate Judge Upadhyaya'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. See ECF No. 40-1 at 12-13; ECF No. 47 at 719. They say they are eligible for three reasons. First, they note that USAGM only responded to their FOIA request after Plaintiffs filed suit. Second, they point to the suddenness of USAGM's response after the suit was filed. 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. None of these arguments-considered individually or in the aggregate-show by a preponderance of the evidence that Plaintiffs' lawsuit caused USAGM to “voluntar[ily] or unilateral[ly] change [its] position” about its FOIA disclosures, as required under the catalyst theory. 5 U.S.C. § 552(a)(4)(E)(ii)(II).

A. USAGM's Disclosure of Records After Plaintiffs Sued Does Not Establish That the Lawsuit Caused USAGM to Change its Position

In their opening brief before the magistrate judge, Plaintiffs included just a few sentences on the threshold question of whether they were eligible for fees. They noted how, “prior to the initiation of this lawsuit, USAGM had not produced a single page of the requested documents,” nor had it “responded to, acknowledged, or provided any indication that it intended to release records in response to Plaintiffs' FOIA request.” ECF No. 40-1 at 12. They then baldly asserted that “[o]nly the filing of the December 2020 Complaint . . . prompted the agency to search for and release the requested records.” Id. at 13.

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. Grand Canyon Tr., 947 F.3d at 97 (quoting Weisberg v. U.S....