N.Y.C. Apparel v. U.S. Customs and Border Protect., Civil Action No. 04-2105 (RBW).

• Decision Date: 01 July 2008
• Docket Number: Civil Action No. 04-2105 (RBW).
• Citation: 563 F.Supp.2d 217
• Parties: N.Y.C. APPAREL F.Z.E., Plaintiff, v. UNITED STATES CUSTOMS AND BORDER PROTECTION BUREAU, Defendant.
• Court: U.S. District Court — District of Columbia

563 F.Supp.2d 217

N.Y.C. APPAREL F.Z.E., Plaintiff, v. UNITED STATES CUSTOMS AND BORDER PROTECTION BUREAU, Defendant.

Civil Action No. 04-2105 (RBW).

United States District Court, District of Columbia.

July 1, 2008.

Peter S. Herrick, Miami, FL, for Plaintiff.

Rhonda C. Fields, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

N.Y.G. Apparel F.Z.E. initiated this civil lawsuit on December 3, 2004, seeking to compel the disclosure of certain records requested from the United States Customs and Border Protection Bureau pursuant to the Freedom of Information Act, 5 U.S.C. §§ 552-552b (2000) (the "FOIA"). Currently before the Court is the Plaintiffs Motion for an Award of Attorney Fees (the "Pl.'s Mot."), in which the plaintiff requests attorney's fees in the amount of $21,722.50. After carefully considering the plaintiffs motion, the defendant's opposition (the "Def.'s Opp'n"), and the plaintiffs reply memorandum in support of its motion (the "Pl.'s Reply"), the Court concludes that the motion must be denied for the reasons that follow.

I. Background

The Court has previously described the facts underlying this case in some detail in separate memorandum opinions, see generally NYC Apparel FZE v. U.S. Customs and Border Prot., No. Civ. A. 04-2105(RBW), 2006 WL 167833 (D.D.C. Jan. 23, 2006) ("NYC Apparel I") (resolving cross-motions for summary judgment filed by the parties); NYC Apparel FZE v. U.S. Customs and Border Prot, 484 F.Supp.2d 77 (D.D.C.2007) ("NYC Apparel II") (resolving renewed cross-motions filed by the parties), and therefore need only briefly describe them here. In summary, the plaintiff, an exporter of merchandise from the United Arab Emirates, claims that the defendant seized two of its containers at the Los Angeles-Long Beach Seaport on July 9, 2003, and July 12, 2003, which led the plaintiff to submit a FOIA request on September 3, 2003, for all information relating to those searches. NYC Apparel II, 484 F.Supp.2d at 82. When the defendant refused to disclose eighty-four pages of documents that were responsive to the plaintiffs request on the ground that the documents were exempt from disclosure under the FOIA, the plaintiff first appealed that determination to the defendant's FOIA Appeals Officer and, after receiving no determination from the FOIA Appeals Officer, filed its complaint in this Court on December 3, 2004. Id. at 82-83.

After this action was initiated, the FOIA Appeals Officer (the "Appeals Officer") issued her decision in a letter dated February 23, 2005. Id. at 83. In that letter, the Appeals Officer determined that thirty-five of the eighty-four pages discovered by the defendant should be released to the plaintiff, that nineteen pages were properly withheld by the defendant, and that the remaining thirty pages were duplicates of the pages subject to disclosure or properly withheld. Id. In response to the Appeals Officer's decision, the parties filed cross-motions for summary judgment with respect to the adequacy of the defendant's search for responsive documents and with respect to whether the documents withheld by the defendant were exempt from disclosure under the FOIA. Id. at 83-84. In an unpublished memorandum opinion issued on January 23, 2006, this Court concluded that neither party was entitled to summary judgment based on the record before it, but that the defendant could remedy its evidentiary deficiencies within thirty days of the order executing the Court's memorandum opinion. NYC Apparel I, 2006 WL 167833, at *8. The Court further provided that if the defendant thought it "necessary to undertake an additional search for documents pursuant to the plaintiffs FOIA request," it needed to do so no later than sixty days from the date of the accompanying order. Id.

As permitted by the Court's memorandum opinion and order, the defendant renewed its search for documents responsive to the plaintiffs FOIA request. NYC Apparel II, 484 F.Supp.2d at 84. The defendant discovered ten additional documents, five of which it released to the plaintiff. Id. Thereafter, the parties renewed their motions for summary judgment. Id. On April 11, 2007, the Court issued a memorandum opinion in which it "held that the defendant is entitled to judgment as a matter of law." Id. at 99. The very next day, the plaintiff filed a motion to alter or amend the Court's order, which the Court denied in an order (the "Reconsideration Order") entered on January 15, 2008. Reconsideration Order at 3.

The plaintiff filed its motion for attorney's fees and costs on January 31, 2008. In support of its motion, the plaintiff argues that (1) it is entitled to attorney's fees and costs because the Court's NYC Apparel I decision and accompanying order led to the production of five pages of documents by the defendant, and because the relevant factors used to determine whether a prevailing party is entitled to an award favor the plaintiff, Pl.'s Mot. at 3-8, and that (2) the fees requested by the plaintiff are reasonable, id. at 8. The defendant contests both of these assertions in its opposition, Def.'s Opp'n at 7-19, and further argues that the comparatively more lenient standard for a plaintiff to succeed on its request for attorney's fees under the attorney fee provision in the FOIA as amended on December 31, 2007, 5 U.S.C. § 552(a)(4)(E)(i) (2000), should not apply to the plaintiffs request in this case because the Court granted the defendant's motion for summary judgment prior to that time, Def.'s Opp'n at 3-6. The plaintiff counters that the amendment made to the fee-shifting provision of the FOIA only codified pre-existing law, Pl.'s Reply at 2-6, and notes that the Court did not resolve its motion for reconsideration until after the amendment to the provision went into effect, id. at 3.

II. Standard of Review

Under the FOIA, a court "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). To recover such fees, a party must demonstrate that (1) it has substantially prevailed in the litigation and is therefore "eligible" for the award, and (2) it is "entitled" to fees based on the trial court's assessment of four criteria: (1) the public benefit derived from the case, (2) the commercial benefit to the plaintiff, (3) the nature of the plaintiffs interest in the records, and (4) the reasonableness of the agency's withholding. Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1093 (D.C.Cir.1992). "The sifting of [these] criteria over the facts of a case is a matter of district court discretion." Id. at 1094. If a district court decides that the plaintiff has substantially prevailed and has satisfied the four criteria, the court must then make a determination as to whether the amount of attorneys' fees requested is reasonable. Summers v. U.S. Dep't of Justice, 477 F.Supp.2d 56, 63-64 (D.D.C.2007).

III. Legal Analysis

Based upon the positions framed by the parties in their memoranda of law, the issues before the Court are (1) whether § 4 of the OPEN Government Act of 2007, Pub.L. 110-175, 121 Stat. 2524 (2007) (the "OGA"), which expanded the conditions under which a plaintiff could recover attorney's fees under § 552(a)(4)(E), applies retroactively to the plaintiffs feeshifting request, (2) whether the plaintiff has "substantially prevailed" in its lawsuit, and therefore is eligible for a fee award under the amended statute, and (3) whether the plaintiff is "entitled" to attorney's fees and costs under the four criteria set forth by the District of Columbia Circuit in Tax Analysts. Because the Court concludes that § 4 of the OGA cannot be applied retroactively to the circumstances of this case, it need not address the latter two issues in dispute. It will therefore confine its analysis to the issue of retroactivity.

The plaintiffs entire motion takes as its premise the applicability of § 552(a)(4)(E) as amended by the OGA. The OGA provides in pertinent part that:

(a) IN GENERAL.—Section 552(a)(4)(E) of title 5, United States Code, is amended—

(1) by inserting "(i)" after "(E)"; and

(2) by adding at the end of the following:

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant 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 claims is not insubstantial.

OGA § 4(a), 121 Stat, at 2525 (emphasis added).

The language added by the OGA, particularly the language found in sub-part (ii)(II) of the amended provision, essentially codifies the so-called "catalyst theory" for determining a fee request against the United States, under which a plaintiff is deemed to have "substantially prevailed" for purposes of § 552(a)(4)(E) if the "litigation substantially caused the requested records to be released." Chesapeake Bay Found, v. Dep't of Agric, 11 F.3d 211, 216 (D.C.Cir.1993). The catalyst theory was explicitly rejected by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), in the context of a request for attorney's fees against the United States under analogous feeshifting provisions in the Fair Housing Amendments Act of 1998, 42 U.S.C. §§ 3610-3614a (2000) (the "FHAA"), and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-02, 12111-17, 12131-34, 12141-50, 12161-65, 12181-89, 47 U.S.C. §§ 225, 12201-13 (2000) (the "ADA"), see also Buckhannon, 532 U.S. at 610, 121 S.Ct. 1835 ("[W]e hold that the 'catalyst theory' is not a permissible basis for the award of attorney's fees under the FHAA ... and [the] ADA. ..."). The Court reasoned that the plaintiff...