                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

CHARLES WHITE,                                )
                                              )
               Plaintiff,                     )
                                              )
               v.                             )       Civil Action No. 08-1376 (RWR)
                                              )
HARLEY LAPPIN, Director,                      )
Federal Bureau of Prisons,                    )
                                              )
               Defendant.                     )

                                  MEMORANDUM OPINION

       Plaintiff brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C.

§ 552. Plaintiff has moved for an award of costs1 and defendant has renewed his motion to

dismiss. Defendant’s renewed motion to dismiss will be granted as conceded. Plaintiff is not

eligible for or entitled to an award of costs, and his motion will be denied.

                                         BACKGROUND

       On April 8, 2008, plaintiff submitted a request to the Director of the Federal Bureau of

Prisons (“BOP”) under the FOIA for the following:

               1.      All medical records, files, notes and any other documents that
                       the [BOP] has in its possession regarding Charles White.
               2.      All dental records, files, notes and any other documents that
                       the [BOP] has in its possession regarding Charles White.

Compl., Ex. 1 (April 8, 2008 Freedom of Information/Privacy Act Request) (exhibit number

designated by the Court). Because he had not received a timely response to his FOIA requests,

see Compl. ¶ 6; Pl.’s Objection to Def.’s Renewed Mot. to Dismiss and Opp’n to Pl.’s Mot. for



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               Plaintiff also moved for sanctions but later withdrew that request.

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Sanctions and Costs (“Pl.’s Opp’n”) at 1, he filed this civil action in order to obtain the requested

records. Because of defendant’s untimely response, plaintiff demanded an award of costs to

cover the portion of the filing fee he has paid, and typewriter ribbon and copy fees. Mem. in

Supp. of Pl.’s Cross-Mot. for Summ. J. [Dkt. #8] at 4; Pl.’s Resp. to the Court’s Order of April

29, 2009 and Contemporaneous[] Request for Sanctions [Dkt. #11] (“Pl.’s Resp.”) at 2-3; Pl.’s

Opp’n at 6.

        Defendant has shown, and plaintiff has acknowledged, that the requested medical and

dental records, except for throat, chest, and head x-rays, have been released. White v. Lappin,

No. 08-1376, 2009 WL 1921337, at *2 (D.D.C. July 2, 2009). Pursuant to the Court’s July 2,

2009 Order, defendant has filed “a renewed motion with respect to plaintiff's request for x-rays

and . . . an opposition . . . to plaintiff’s motion[] . . . for costs.” Id. Plaintiff concedes that he has

received the requested records. Pl.’s Opp’n at 1-2. The sole matter for resolution, then, is

plaintiff’s motion for costs.

                                             DISCUSSION

        The FOIA permits a district court to “assess against the United States . . . other litigation

costs reasonably incurred in any case . . . in which the [plaintiff] has substantially prevailed.” 5

U.S.C. § 552(a)(4)(E)(i). A party substantially prevails if he “has obtained relief through either

. . . a judicial order, or an enforceable written agreement or consent decree[,] or . . . a voluntary

or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.” 5

U.S.C. § 552(a)(4)(E)(ii). The latter 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


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caused the requested records to be released.’” N.Y.C. Apparel F.Z.E. v. U.S. Customs and

Border Prot. Bureau, 563 F. Supp. 2d 217, 221 (D.D.C. 2008) (quoting Chesapeake Bay Found.

v. Dep’t of Agric., 11 F.3d 211, 216 (D.C. Cir. 1993)); see Zarcon, Inc. v. Nat’l Labor Relations

Bd., No. 06-3161-CV-S-RED, 2009 WL 4960224, at *2 (W.D. Mo. Mar. 25, 2008). “The

catalyst theory assumes that a voluntary or unilateral change in an agency’s position is induced

by the complainant’s lawsuit.” Wildlands CPR v. U.S. Forest Serv., 558 F. Supp. 2d 1096, 1098

(D. Mont. 2008).

       The decision to award attorneys’ fees and costs is left to the Court’s discretion. See

Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 705-06 (D.C. Cir. 1977) (commenting

that the § 552(a)(4)(E) “contemplates a reasoned exercise of the courts’ discretion taking into

account all relevant factors”). In making this decision, the Court considers “(1) the public

benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the

plaintiff’s interest in the records; and (4) the reasonableness of the agency’s withholding of the

requested documents.” Davy v. Cent. Intelligence Agency, 550 F.3d 1155, 1159 (D.C. Cir. 2008)

(citations omitted). “No one factor is dispositive, although the [C]ourt will not assess fees when

the agency has demonstrated that it had a lawful right to withhold disclosure.” Id.

       Plaintiff asserts that he has “obtained the desired relief, the release of his records, due to a

voluntary change in position by the [d]efendant: [a]cknowledging his FOIA request, once he

filed a complaint in the Court[.]” Pl.’s Opp’n at 3 (internal parentheses omitted). He argues that

he has substantially prevailed and therefore is entitled to an award of costs because defendant

“forced [him] to move in the Court to force the Defendant’s compliance with the [FOIA, and] the

Defendant is responsible for all incurred court cost[s].” Pl.’s Resp. at 3.


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       Defendant counters that plaintiff has not substantially prevailed for purposes of the

FOIA. Def.’s Renewed Mot. to Dismiss and Opp’n to Pl.’s Mot. for Sanctions and Costs

(“Def.’s Mot.”) at 14. In defendant’s view, because plaintiff obtained the requested records

without a court order, enforceable written agreement, or consent decree, he is not eligible for an

award of costs. Id. Defendant further argues that it did not change its position due to plaintiff’s

complaint. Id. at 15. Rather, defendant states that it did not become aware of plaintiff’s FOIA

request until plaintiff filed suit. Id. “In essence,” defendant argues, plaintiff’s complaint “has

served as a proxy for the administrative complaint that [p]laintiff never filed.” Def.’s Mot. at 15.

In sum, defendant asserts that plaintiff fails to establish a nexus between the filing of a civil

action and release of agency records. See id.

       Defendant demonstrates that the BOP had no record of “any FOIA request being

accepted and processed by or on behalf of the [p]laintiff” at the time the complaint was filed.

Mem. of P. & A. in Supp. of Def.’s Mot. To Dismiss, Attach. (Tafelski Decl.) ¶ 4. “If no FOIA

request is received, an agency has no reason to search or produce records and similarly has no

basis to respond.” Carbe v. Bureau of Alcohol, Tobacco and Firearms, No. 03-1658, 2004 WL

2051359, at *8 (D.D.C. Aug. 12, 2004); see Antonelli v. Fed. Bureau of Prisons, 591 F. Supp. 2d

15, 26 (D.D.C. 2008) (“An agency’s disclosure obligations are not triggered . . . until it has

received a proper FOIA request in compliance with its published regulations.”) (citing 5 U.S.C. §

552(a)(3) and 552(a)(6)(A)(i)); West v. Jackson, 448 F. Supp. 2d 207, 211 (D.D.C. 2006)

(concluding that the requester had no viable FOIA claim where the agency had no record of

having received a FOIA request), aff’d, 2007 WL 1723362 (D.C. Cir. Mar. 6, 2007) (per




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curiam). On the record of this case, plaintiff cannot show that the BOP voluntarily or

unilaterally changed its position because of the lawsuit.

       Moreover, the Davy factors to not weigh in favor of an award of costs. It is apparent that

plaintiff filed this action in order to obtain the release of medical and dental records for

plaintiff’s personal use only. Although plaintiff derives no commercial benefit from these

records, it does not appear that the public benefits in any way from their release. The BOP has

shown that the reason it had not released the medical records, dental records and x-rays before

White sued was reasonable: it had not received plaintiff’s FOIA requests. However, when the

BOP became aware of the requests, its staff acted promptly to arrange for the release of

plaintiff’s medical and dental records at no charge to him. Def.’s Mot., Ex. 1 (Considine Decl.)

¶¶ 3-5. Once it became clear that plaintiff demanded release of copies of the x-ray films

themselves, BOP staff promptly provided him “the opportunity to view all of the medical x-ray

films . . . maintained by [the] BOP.” Id., Considine Decl. ¶ 7. In addition, BOP staff made

arrangements for copying the films and sending them to the physician of plaintiff’s choice, upon

payment of $5.00 per film copied. Id. ¶¶ 8-9. Likewise, these considerations do not establish

that plaintiff’s claim is not insubstantial, a threshold for being eligible for an award of costs that

plaintiff fails to meet. 5 U.S.C. § 552(a)(4)(E)(ii); see Dasta v. Lappin, 657 F. Supp. 2d 29, 33

(D.D.C. 2009) (denying a requester’s demand for costs where his interest in and intended use of

the requested records was personal, and where the public derived no benefit from the FOIA

request or subsequent litigation).




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                                           CONCLUSION

       Defendant’s renewed motion to dismiss will be granted as conceded. Because plaintiff

does not establish that he is eligible for or entitled to an award of costs, his request will be

denied. An Order accompanies this Memorandum Opinion.

       Signed this 29th day of July, 2010.

                                                                    /s/
                                                       RICHARD W. ROBERTS
                                                       United States District Judge




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