People For the Ethical Treatment of Animals v. United States Department of Agriculture

District of Columbia, dcd-1:2003-cv-00195

MEMORANDUM OPINION & ORDER denying {{49}} Plaintiff's Motion for Attorney Fees. Signed on 2/27/06 by Judge Suzanne B. Conlon, U.S. District Court for the Northern District of Illinois, sitting by designation.).

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Sonus 1 FEB-27-2006(NON) 16:57 P. 002/012 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Civil Action No.: 03-195 (SBC) Plaintiff, Suzanne B. Conlon, Judge UNITED STATES DEPARTMENT OF) AGRICULTURE WOW Dcfcndant.) MEMORANDUM OPINION AND ORDER Pursuant to the Freedom of Information Act (*FOTA"), 5 U.S.C. $ 552, People for the Ethical Treatment of Animals ("PETA") requested dacuments from the United States Department of Agriculture ("USDA") relating to USDA's decision to guarantec a loan far Hunte Corporation. In response, USDA Itleased the majority of the requested documents and withheld the remainder based on FOLA exemptions. PETA tiled this case lo obtain the withheld documents. The parties cross- moved for summary judgment. The CTOSS-motions were granted in part and denied in parti. PETA moves for an awurd of reasonable attorneys' fccs and costs pursuant to 5 U.S.C. $ 552(a)(4)B). For the reasons set forth below, the motion is denicd. BACKGROUND PETA made the FOIA requests to examine USDA's dual roles as an cnforcer of the Animal Welfarc Act (the AWA") and a guarantor of loans for Hunte. USDA was charged with onſorcing the AWA. 7 U.S.C. $$ 21326), 2133, 2146. The AWA requires pot dealcrs to provide "humane care and treatment" to pets; Hurite was a dealer regulated by the AWA. 7 U.S.C. $$ 2131(1), · 2132(D. According to PETA, USDA's erforcement of the AWA was incffcctive; Hunte was tied FEROZ na wnu 1 P.003/012 to several alleged violators of the AWA. PETA Mem. at 3-4. Through its rural development program, USDA approved a loan guarantee for Hunte in September 2001. Id. at 7. This was the third in a series of USDA's loan guarantees for Hunte. Id. USDA was aware that Congressional representatives from Missouri, where Hunte is located, reccived some e-mails from the public voicing opposition to the loan guarantees. Id. at &. On December 12, 2001,PETA submitted its first FOIA request to USDA's rural development office in Missouri. Id. PETA requested "all agency records rclated to USDA guaranteed rural development loan to the McDonald County based l-unte Corporation, approved in September of 2001() including but not limited to the loan application and loan approval." Id. at 8-9. PETA's rcqucst was denied on the basis that PETA sent the request to the wrong USDA branch. Id. at 9. PETA resubmitted the request to the same office, contesting the denial, Id. The second requcst was denied on Thuruary 17, 2002. Id. PETA appealed both denials to USDA's administrator in Washington D.C. Id. On November 27, 2002, USDA granted PETA's appeal in part, releasing 206 full and redacted pages of documcnts and withholding 17 full pages. PETA Mot. Ex. 5 at 115. USDA claimed exemptions under 5 U.S.C. GS 552(b)(4)-(6) for withholding information. Id. On February 6, 2003, PETA filed this case to compel disclosure of the withheld information. In an effort to settle, USDA conducted another search for responsive documerils and released 24 additional pages. Id. at 117. Settlement acgotiations fell apart when PETA failed to obtain certain documents concerning USDA's approval of the loan guarantee. Id at 918. The parties then crass- moved for summary judgment. - - - IX.ISTOR A NTE - TER27 Dreschowcase 4:03-cv-00195-SBC Document 60 Filed 03/01/06 Page 11 of 11 D, P. 012/012 CONCLUSION For the reasons set forth above, PETA's motion for an award of reasonable attorneys' focs and costs (49.1) is denied. ENTER: Suzanne B. Conlon United States District Judge' February 27, 2006 * ** ** * ** 1 On March 11, 2005, the Chief Justice of the United States reassigned this case to Judge Suzanne B. Conlon of thc United States District Court for the Northern District of Illinois. See PETA v. U.S. Dep'r of Agric, No. 03 C 195, Dki. No. 30 (D.D.C. Mar. 11, 2005). ". --- . . WIMAX. Want S.. . M iches t h at we will FEB-27-2006 (MonCage:03-cv-00195-SBC Document 60 Filed 03/01/06 Page 3 of 11 P. 001/012 To justify its withholding of documents, USDA submitted a Vaughn index. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The index described cach withheld document, listed the claimed exemptions, and stated a justification. The index contained 83 documents totaling approximately 132 pages. USDA Mem. at 3. USDA asserted cxcmptions under 5 U.S.C. $$ 552(b)(4)-(6). Id. at 2. Because the index insufficicntly described 24 documents, USDA produced these documents to the court for in camera inspection. PETA v, U.S. Dept of Agric., No. 03 C 195, 2005 WL 1241141, at *3 (D.D.C. May 24, 2005). In response to USDA's cross-motion, PETA waived its intcrestin documents withheld under 5 U.S.C. $ 552(b)(6) and documents relating to loan transfer and assignment. Id. at * 1. But PETA sought the release of over 70 documents. Id. Ruling on the cross-motions, the court upheld all of USDA's $ 552(b)(5) claims. Id. at *12. The court granted partial summary judgment to PETA, holding that for 13 documents, USDA failed to establish its 552(b)(4) claims. Id. As a result, USDA released portions of 19 pages. USDA Mem. at 3. The information released in these documents concerned three topics: (1) the percentage of the loan amount guaranteed by USDA and the guarantee fee paid by Llunte; (2) duplicate information disclosed in other documents; and (3) boilerplatc loan terms and conditions. PETA, 2005 WL 1241141, at **9-10. Pursuant to 5 V.S.C. $ 552(a)(4)(E), PETA moves for an award of attorneys' fces and costs for the entire litigation in the amount of $51,60426. ..... . ... .. .... 12u - W o men Se r best **** x. . FER-27-2006rmowcase 4:03-cv-00195-SBC Document 60 Filed 03/01/06 Page 4 of 11 P. 005/012 DISCUSSION 1. Standard Section 552(a)(4)(E) allows the court to assess against the United States reasonable atlomey fees and other litigation costs" in any FOIA case in which plaintiff has substantially provailed. 5 U.S.C. & 552(a)(4)(E). Amotion under this provision requires the court to decide two questions: (1) whether plaintiff is cligible for an award; and ifsa, (2) Whcthcr plaintiffis entitled to an award. Tax Analysts v. U.S. Dep'r of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992). Both questions are left to the court's discretion. Id. at 1094. II. Eligibility USDA does not dispute PETA's cligibility under $ 552(a)(4)E). PETA establishes that litigation was necessary and that this casc substantially caused the release of the requested information. Chesapeake Bay Found., Inc. v. U.S. Dep". Of Agric, 11 F.3d 211, 216 (D.C. Cir. 1993). PETA brought this casc after USDA denied part of its appeal. PETA obtained withheld information, as a result of its sumitary judgment motion. In other words, PETA obtained the information pursuant to a "judicially sanctioned change in the legal relationsbip of thc partics." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept of Health & Human Res., 532 U.S. 598, 805 (2001); see also Oil. Chem. & Atomic Workers Ini'l Union v. Dept of Energy, 288 F.3d 452,456-57 (D.C. Cir. 2002) (applying the Buckhannon Board teșt to FOIA cases). PETA las substantially prevailed and is therefore cligible for an award of attorneys' ſees under $ 552(a)(4)(E). Id. --- .:- .. ......... ... MWANAN. . . . . . . . . .. . . nyataka n FEB-27-2005 (MonCase 1.03-cv-00195-SBC Document 60 Filed 03/01/06 Page 5 of 11 P. 006/012 WII. Entitlement In determining whether an eligible plaintiffis cntitled to attorneys' fees under $ 552(a)(4)(E), the court must consider at least four factors: "(1) the public bonelit derived from the case; (2) the commercial bcncfit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the rcasonableness of the agency's withholding." TaxAnalysts, 965 F.2d at 1093. When weighing these factors, the court must keep in mind FOTA's basic policy to encourage public access to government information and to facilitate citizens' access to thc courts. Church of Scientologyv. Harris, 653 F.2d 584,590 (D.C. Cir. 1981). A. Public Benefīt Thc public benefit factor is satisfied if the court ordered disclosure is "likely to add to the fund of information that citizens may use in making vital political choices." Collon v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995). Analysis of this factor requires an evaluation of (1) the specific information released under court order; and (2) the extent to wluich that information is already in the public domain. Id.; see also Tax Analysis, 965 F.2d at 1094. PETA submits five documents, including an affidavit, e-mails, and news articles, to establish USDA's loan guarantec program was a lopic of significant public debate." PETA Mot. Exs. 3, 5, 17, 18, 20. These documents demonstrate some public interest in the program. Id. But the "public outcry" over the programri might not have been as loud as it sounds in PETA's brief. See PETA MOL. Ex. 18 at 2 (stating that Hunte's competitors authored at least some of the c-mails to Congressional representative); see also USDA Mem. et 10 (claiming PETA members generaled the e-mails). Nonctheless, the existence of thc public's interest is beyond questioni, FEB- Docino 1 P. 007/012 PETA argues "i]nformation Teleased as a result of this case" satisfies the public benefit factor. PETA Reply at 7. PETA relies on three itens of information: (1) USDA's failure to require Hunte to submit a business plan; (2) Hunte's involvement with Doug Hughes; and (3) Hunte's loan guarantee percentagc. PETA's argument is too broad because only the third item was released under court order. See Conlon, 63 F.3da11120 (the court must cvaluate the specific documents at issue"). Accordingly, only the third item is relevant to the public benefit analysis. PETA correctly argues the information concerning Hurite's loan guarantee percentage benctīts the public by "add[ing] to the fund of informntion that citizens may use in making vital political choices." Id. As USDA admits, Huntc's loan guaranlée percentage is governed by regulations. USDA Mem. at 9. Disclosurc of this information helps the public assess whether USDA complied with regulations in approving Hunte's loun guarantec. Public benefit is therefore derived from the disclosure. Piper v, U.$. Dep'r of Justice, 339 F. Supp. 2d 13, 22 (D.D.C. 2004) (firiding public benefit where the disclosure" will assist the citizenry in making informed judgments" about the agcrcy). To satisfy the public benefit factor, PETA need not quantify the impact on the public resulting from court ordered disclosure. Id. In fact, disclosure of Hunte's loan guarantee percentage. .... . has only limited impact on the public becausc USDA had released the bulk of the requested information-over 200 pages - before the commencement of this case. The settlement negotiations and litigation resulted in the relcasc ofless than 50 pages; the court ordered disclosure revealed only. ..... geocric terms of the loan guarantee and some previously disclosed information. Even if the court takes into account all information released as a result of the entire case, the aggregate impact remains. insignificant. Nonctheless, PETA satisfies tie public interest factor. 3. Which tematiche 7-pinoinnin çaşe_7:03-cv-00195-SBC Document 60 Filed 03/01/06 Page 7 of 11 P. 008/012 USDA argues this case resulted in no public bencfit at all, relying on Cotton and Texas v. Interstate Commerce Commission, 935 F.2d 728 (5th Cir. 1991). Collon and Teas are distinguishable. in Cotron, plaintiſr līled a FOTA suit against her former employer, a govertiment agency. Corton, 63 F.3d at 1116. She sought certain documents that would help her prepare an employment discrimination suit. Id. The district court found public benefit based on the precedential valuc of plaintiff's FOIA victory. Id. at 1120. But the Court of Appeals reversed, citing thc abscece of evidence showing that the disclosure would contribute to the public's ability to make vital political choices. Id. Cotton is inapplicablc here because PETA has established a nexus between the court ordered disclosure and public benclit. In Texas, plaintiff suspected the Interstate Commerce Commission of wrongdoing and sought disclosure of documents to substantiate its suspicion, Texas, 935 F.2d at 734. Plaintiff moved for attorneys' fees after disclosure revealed no wrongdoing. Id at733. The Court of Appcals found no public beneſīton the basis that no one from the public shared plaintiff's suspicion. Id. at 733-34. Here, however, PETA is not alonc in having an interest in USDA's loan guarantee program. See, e.g., PETA Mot. Ex. 18 at 1-2 (c-mails from the public to Congressional representatives). Thus, USDA's reliance on Texas is misplaced. B. Commercial Bencfit and Nature of PETA's Interest The second and third factors-commercial bcncfit and nature of plaintifr's interesi are often considered together. Tax Analysts, 965 F.2d at 1095. The parties agree that PETA is a nonprofit organization dedicated to the protection of animals. PETA Mem. al 19; USDA Mem, at 2. PETA disclairas any commercial benefit from this case. PETA Merr. at 9. No evidence suggests PETA can profit from USDA's information; it is undisputed that PETA intends to disseminate USDA's information to the public. Analyses of these two factors favor an award of attorneys' fees. ALPWWW: www. t w itter .com FB 20sim Çaşęc:03-cv-00195-SBC Document 60 Filed 03/01/06 Page 8 of 11 P. 009/012 USDA asserts, without offcring any evidence, that PETA brought this case to attract supporters. This assertion is speculative. As a result, the two cases cited by USDA are inapplicablo As thcy both are predicated on findings of privale, commercial interests in the FOTA suit. See Church of Scientologyv. USPS, 700 F.2d 486, 494 (9th Cir. 1983); see also Simon v. United States, 587 F. Supp. 1029, 1032 (D.D.C. 1984). Morcover, to be entitled to a fec award, PETA need not be complelely free of self-interest. See Piper, 339 F. Supp. 2d at 22. Accordingly, USDA's arguments on the second and third factors are without merit. C. Reasonableness of USDA's Legal Position To satisfy this factor, USDA need only have "a colorablc basis in law" for withholding information. Chesapeake Buy Found., 11 F.3d at 216. USDA need not show the withheld information was in fact exempt. Fenster v, Brown, 617 F.2d 740,744 D.C. Cit. 1979). USDA need only demonstrate that it had a reasonable legal basis for claiming exemption and that its conduct was .. ... neither recalcitrant nor obdurate. Id. On the parties" cross-motions for summary judgment, lite court upheld all of USDA'S S 552(b)(5) claims and the majority of its $ 552(b)(4) claims. PETA, 2005 WL 1241141. at **11-12. Although USDA failed to cstablish its $ 552(b)(4) claims for some documents, the failure was attributed to insufficicncy of the evidence. Id. at 9. USDA's position in withholding these documents was weak, but not baseless. Tex Analysts, 965 F.2d at 1097 (weakness in legal position does not compel the conclusion of baselesszess). Becausc USDA prevailed on the majority of its claims, its overall position was reasonable. Ich (affirming denial of fee award notwithstanding the government lost two appcals). CORRER FERO7-2005 noy1 d 03/01/06 Page 9 of 11 P 010/017 PETA argucs USDA wreasonably withheld information concerning the approval of Hunte's loan guarantec, rclying on Martin Marietta Corp, v. Dalton, 974 F. Supp. 37 (D.C.C. 1997), and Niagara Mohawk Power Corp. v. United States Department of Energy, 169 F.3d 16 (D.C. Cir. 1999). Both cases deal with the merits of FOIA exemptions; but neither sheds light on the reasonableness inquiry in the context of attorncys* fcc awards. PETA advances two arguments for tiading USDA's conduct reasonable. Neither has merit. PETA argues USDA denied the initial FOLA requests in bad faith. Even assuming USDA's pro-litigation conduct is relevant USDA granted PETA's appeal in part and released the bulk of the requested information. PETA Mot. Ex. 5 at 15. No evidence suggests USDA acted in bad faith. PETA argues USDA was recalcitrant in refusing to rclcasc "the most basic information about the loan guarantee." PETA Mem, at 21. This argunicat misses the point: The inquiry here is whether USDA had a colorable basis in law to withhold information, not whether the withheld information. .. was irimportant to the FOIA rcqucsts. ... ... This case is distinguishable from those cited by PETA, Piper and Judicial Watch, Inc. . Department of Commerce, 384 F. Supp. 2d 163 (D.D.C.2005). In Piper, defendant identificd in its Vaughn index a document with unmistakable, detailed description. Piper, 339 F. Supp. 2d at 23. Plaintiff requested a document with a virtually identical description. Id. But dcfendant stated that no responsive documents could be found. Id, The court held defendant's statement amounted to recalcitrant conduct. Id. In Judicial Watch, the court found dcfendant "wrongfully withheld 3 - documents, destroyed documents, and removed ... (documents) with the apparent intention of thwarting the FOLA." Judicial Watch, 384 F. Supp. 2d at 167. In both cases, evidence supported findings of recalcitrant and obdurate conduct. 9. www. wat AWARD W r zes ! Paz Donario Gasę, 1:03-cv-00195-SBC Document 60 Filed 03/01/06 Page 10 of 11 en P. 011/012 15:5 USDA's conduct cannot be likcncd to the recalcitrant conduct in Piper and Judicial Warch. USDA failed to sufficiently describe 24 documents in the Vaughn index. PETA, 2005 WL 1241141, mt *4. Yet the majority of USDA's claims of exemptions were ultimately sustained. Id. at *12. USDA redacted documents that duplicated previously disclosed information, id. at *9, but no evidence suggests USDA did so with the intent to frustrate PETA's cfforts. In surn, USDA's partial loss on the cross-motioris for summary judgment resulted from crrors in legul judgment and perhaps blurder, but not from subterfuge. Accordingly, USDA did not engage in recalcitrant or abdurate conduct in this litigation; USDA had a colorablc basis in law for its unsuccessful claimed exérnplions. D. Balancing the Factors USDA's conduct in this litigation has been reasonable. This faclor weighs heavily against an award of attorncys foes. "The pubic benefit resulting from this case is limited and therefore docs not justify a fcc award in light of USDA's reasonable conduct. While it is true that PETA brought this case to advance public interest and that PETA gained no commercial benefit, these factors do not carry the day. See Cotton, 63 F.3d at 1123 (reversing fee award based salcly on the public benefit and reasonable basis factors). Consideration of these four factors counscis against a fee award. Tax Analysts, 965 F.2d at 1097 (affirming denial of attorncys' fees because the government was not recalcitrant).: wa 10