                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 EDWARD HARVEY,

                Plaintiff,

        v.                                           Civil Action No. 14-784 (RDM)

 LORETTA E. LYNCH, United States
 Attorney General, et al.,

                Defendants.


                             MEMORANDUM OPINION AND ORDER

       Edward Harvey brought this action under the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, to compel the Bureau of Prisons (“BOP”) to release certain records that he sought

in a FOIA request he had submitted several months earlier. Nine days after Harvey filed suit, the

BOP produced the records he had requested. Harvey declared himself satisfied with the BOP’s

efforts, but persisted in seeking relief from the Court. On August 21, 2015, the Court issued an

opinion concluding that the case was moot. See Harvey v. Lynch, 123 F. Supp. 3d 3, 8 (D.D.C.

2015). Harvey now moves for an award of costs. See Dkt. 27. The Court DENIES that motion.

                                      I. BACKGROUND

       The facts and procedural history of this action are set out in the Court’s prior opinion, see

Harvey, 123 F. Supp. 3d at 5–6, and the Court will recount them only briefly here.

       Harvey is a federal inmate who submitted a FOIA request to the BOP regarding its efforts

to process two administrative complaints that he and a family member submitted in 2013. See id.

at 5–6. Harvey submitted his request to the BOP on April 14, 2014. Id. at 6. Although the BOP

acknowledged the request, it still had not provided any responsive records 67 business days later,
on July 21, 2014, when Harvey filed this action. Id. Seven business days later, on July 30, 2014,

the BOP provided Harvey with eleven pages of responsive records, one of which was redacted in

part. Id. Harvey declared himself “satisfied” with the BOP’s response, but nonetheless sought a

judgment “declaring BOP’s failure to comply with the time limits set by FOIA and Department

of Justice regulations ‘unlawful.’” Id. The Court, however, concluded that because the BOP had

responded in full to Harvey’s FOIA request, and Harvey did not contest the BOP’s withholdings,

the case was moot. Id. at 7–8.

       In his reply brief and an addendum, Harvey also sought an award of his costs, arguing

that “his lawsuit was the catalyst for BOP’s eventual compliance with FOIA.” Id. at 6. The

Court declined to reach that question, instead ordering Harvey to file a separate motion for costs.

Id. at 9. Harvey filed such a motion on September 9, 2015, advancing substantially the same

argument regarding his entitlement to costs. Dkt. 27. On April 7, 2016, the Court issued an

order directing the BOP to provide additional information regarding its handling of Harvey’s

FOIA request. Dkt. 31. The BOP filed a supplemental declaration in response to the Court’s

request, Dkt. 32, and Havey’s motion is now fully briefed.

                                        II. DISCUSSION

       FOIA’s fee-shifting provision makes plaintiffs who have “substantially prevailed” in a

FOIA suit eligible to recover costs and fees. See 5 U.S.C. § 552(a)(4)(E); Davis v. U.S. Dep’t of

Justice, 610 F.3d 750, 752 (D.C. Cir. 2010). For the purposes of the statute, a FOIA requester

can show that he has “substantially prevailed” if he has obtained relief in either of two ways: (1)

through “a judicial order” or its equivalent or (2) “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).

The second of these two definitions was added to the statute in 2007 to reestablish the so-called



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“catalyst theory” as a method for prevailing in FOIA cases. See Davis, 610 F.3d at 752. Harvey

concedes that he is eligible for costs, if at all, only under this second definition. See Dkt. 27 at 2

(arguing that “the institution of [this] suit clearly caused the agency to release the documents

obtained during the pendency of the litigation”). 1

       The BOP argues that Harvey is not entitled to costs because (1) its release of responsive

records was not prompted by his suit and (2) even if it was, Harvey’s claim was “insubstantial”

within the meaning of the statute. See Dkt. 29 at 5–11. The Court agrees with the BOP’s first

argument, and so has no need to reach its second.

       Under the second prong of FOIA’s fee-shifting provision, a FOIA requester can show

that he has prevailed if he has obtained relief as a result of “a voluntary or unilateral change in

position by the agency.” 5 U.S.C. § 552(a)(4)(E)(ii)(II). The purpose of this provision was to

reestablish the once-prevailing catalyst theory as a method of recovery in FOIA cases. Davis,

610 F.3d at 752. Under the catalyst theory, a plaintiff can obtain an award of costs and fees if

“the institution and prosecution of the litigation cause[d] the agency to release the documents

obtained during the pendency of the litigation.” Church of Scientology of Cal. v. Harris, 653

F.2d 584, 587 (D.C. Cir. 1981). To show that his lawsuit was the “catalyst” for an agency’s

provision of responsive records, a FOIA requester “must show that prosecution of the action

could reasonably be regarded as necessary to obtain the information and that a causal nexus

exists between that action and the agency’s surrender of the information.” Id. at 588 (quoting

Cox v. U.S. Dep’t of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979) (citations omitted)); see Cox, 601




1
  Harvey seeks only an award of costs, not of fees, presumably because “a pro se litigant who is
not a lawyer is not entitled to attorney’s fees” under FOIA. Benavides v. Bureau of Prisons, 993
F.2d 257, 259 (D.C. Cir. 1993) (quoting Kay v. Ehrler, 499 U.S. 432, 435 (1991)).
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F.2d at 6 (“[A]n allegedly prevailing complainant must assert something more than post hoc,

ergo propter hoc . . . .”).

        This analysis is “largely a question of causation.” Church of Scientology, 653 F.2d at

587. And the BOP argues that Harvey’s lawsuit did not cause it to release any records. In its

initial response to Harvey’s FOIA request, the BOP explained that “due to the limited resources

available to process such requests, [BOP] has adopted a first-in/first-out practice of processing

all incoming requests.” See Dkt. 12-3 at 9 (Def.’s Mot. Summ. J., Ex. 2, at 1). In a declaration

attached to its opposition to Harvey’s cross-motion for summary judgment, the BOP analyst who

processed Harvey’s FOIA request, Sandy Raymond, states that she “did not process [the] request

in response to [Harvey’s] July 21, 2014 lawsuit,” but instead processed it “when it was assigned

to [her] in the BOP’s FOIAExpress database.” See Dkt. 16-1 at 3 (Second Raymond Decl. ¶ 3).

And in a supplemental declaration, Raymond elaborates on that account, explaining that BOP

staff initiated a search for responsive records in April 2014, shortly after Harvey submitted his

request; that she processed records obtained in this search (and submitted them for release) in

May 2014; and that she asked another component within BOP to search for additional records in

June 2014—all before Harvey filed suit. See Dkt. 32-1 at 2 (Third Raymond Decl. ¶ 3). After

Harvey filed suit on July 21, 2014, Raymond sent an e-mail to follow up on the second search,

see id. at 17, but no responsive records were located from this search, id. at 13, and the BOP

issued its final determination shortly thereafter. See Dkt. 32-1 at 2 (Third Raymond Decl. ¶ 3).

        The BOP argues, in other words, that its release of responsive records was not caused by

Harvey’s lawsuit; on its account, the release would have occurred even without the lawsuit. And

the record largely bears out that account. As Raymond’s declaration and the supporting evidence

make clear, the bulk of the work to process Harvey’s FOIA request had already been completed



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by the time Harvey filed suit. Harvey’s lawsuit, at most, prompted the BOP analyst who was

handling that request to wrap up work that had already been taken almost to completion. As

many judges within this circuit have recognized, “[t]he causation requirement is missing when

disclosure results not from the suit but from delayed administrative processing.” Short v. U.S.

Army Corps of Eng’rs, 613 F. Supp. 2d 103, 106 (D.D.C. 2009); see also Calypso Cargo Ltd. v.

U.S. Coast Guard, 850 F. Supp. 2d 1, 5 (D.D.C. 2011) (denying fees where agency “had already

begun coordinating and processing the plaintiffs’ request before plaintiffs filed their lawsuit”);

Bigwood v. Def. Intelligence Agency, 770 F. Supp. 2d 315, 321 (D.D.C. 2011) (same); cf. Cox,

601 F.2d at 6 (“If rather than the threat of an adverse court order . . . an unavoidable delay

accompanied by due diligence in the administrative processes was the actual reason for the

agency’s failure to respond to a request, then it cannot be said that the complainant substantially

prevailed in his suit.”).

        Harvey’s primary argument is that an award of costs should be virtually automatic. He

argues that a court should award fees and costs in cases (like his) in which an agency “make[s]

no determination at all until after [a FOIA requester] files suit.” Dkt. 30 at 4. But this is not the

law in this circuit. See Church of Scientology, 653 F.2d at 587–88; Cox, 601 F.2d at 6. As the

D.C. Circuit has observed, “both the plethora of [FOIA] cases pending before federal agencies at

any given time[] and the time-consuming nature of the search and decision process” would make

a strict-liability rule for agencies that miss the 20-day FOIA deadline both unnecessarily harsh

and potentially quite expensive. See Cox, 601 F.2d at 6. This is not to say that an agency’s pre-

suit delay is irrelevant to the analysis. To the contrary, an unusually long delay might give rise

to the inference that the agency forgot about, or sought to ignore, a FOIA requester’s request—

and in such a case an award of costs and fees would be appropriate. But this is not such a case.



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The BOP’s delay, while regrettable, is not of the length that would ordinarily permit the Court to

infer that it was prompted to action by Harvey’s lawsuit. And the BOP eventually provided “a

detailed timeline of events leading up to the disclosure of information” that largely, if not

completely, refutes any claim that that happened here. See Bigwood, 770 F. Supp. 2d at 321.

Because that timeline makes clear that Harvey’s suit was not the cause of the BOP’s production

of records, Harvey is not eligible for an award of costs.

                                         CONCLUSION

       For the foregoing reasons, the Court hereby DENIES Harvey’s motion for an award of

costs, Dkt. 27.

       SO ORDERED.



                                                              /s/ Randolph D. Moss
                                                              RANDOLPH D. MOSS
                                                              United States District Judge

Date: April 18, 2016




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