                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

________________________________
                                  )
CALYPSO CARGO LIMITED & CARIB     )
PETROLEUM, INC.,                  )
                                  )
                Plaintiffs,       )
                                  ) Civil Action No. 10-2125 (EGS)
                v.                )
                                  )
UNITED STATES COAST GUARD,        )
                                  )
                Defendant.        )
                                  )

                          MEMORANDUM OPINION

     Plaintiffs, owners and charterers of the ship Havnor,

brought this action under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, et seq., seeking records regarding the

detention of their ship by defendant, the United States Coast

Guard.   After receiving the requested records, plaintiffs agreed

to dismiss this action voluntarily on April 20, 2011.   Pending

before the Court is plaintiffs’ motion for attorneys’ fees.

Upon consideration of the motion, the memorandum in opposition

and the notice of supplemental authority thereto, the relevant

case law, the entire record in this case, and for the reasons

stated below, the Court hereby DENIES plaintiffs’ motion for

attorneys’ fees.
I.   BACKGROUND

     On or about May 1, 2010, the ship Havnor was en route to

the Dominican Republic, when it was followed and subsequently

stopped by the United States Coast Guard.         Compl. ¶ 8.       The

Coast Guard redirected the ship to Puerto Rico, where the ship’s

cargo tanks were searched.     Id.       Plaintiffs allege that, due to

the actions of the Coast Guard, plaintiffs suffered a major

economic loss.    Id.   Thereafter, on May 10, 2010, plaintiffs

filed with the Coast Guard a FOIA request seeking all records

related to the detention of the ship and its crew.             Id. ¶ 9.    In

a letter dated June 8, 2010, the Coast Guard acknowledged

receipt of plaintiffs’ FOIA request.          Id. ¶ 10.    On August 17,

2010, plaintiffs filed an appeal with the Coast Guard for

failing to provide the requested records.          Id. ¶ 11.    The Coast

Guard acknowledged receipt of plaintiffs’ FOIA requests and

appeals in an email of August 23, 2010.          Id. ¶ 12.    On November

15, 2010, the Coast Guard informed plaintiffs that their FOIA

request had been referred to the Coast Guard’s San Juan Sector

for a response.    Id. ¶ 14.

     Plaintiffs filed their complaint in this action on December

15, 2010.   Subsequent to the filing of the complaint, the Coast

Guard produced 150 pages of documents, and subsequently, an

additional 1,125 pages of documents.         Pls.’ Mem. of Law in Supp.

of Mot. for Attorney Fees (“Pls.’ Mem.”) at 3.            Because

                                     2
 
plaintiffs received all of the requested records, they agreed to

dismiss this litigation voluntarily on April 20, 2011.       See

Stipulation of Dismissal, Docket No. 9.    Plaintiffs filed a

motion for attorneys’ fees on June 20, 2011.    That motion is now

ripe for determination by the Court.

II.   LEGAL STANDARD

      FOIA provides that a court “may assess against the United

States reasonable attorney fees and other litigation costs

reasonably incurred in any case . . . in which the complainant

has substantially prevailed.”    5 U.S.C. § 552(a)(4)(E)(i).       In

determining whether an award of attorneys’ fees is appropriate,

the court employs a two-step inquiry.    First, the court must

determine whether the plaintiff is “eligible” for attorneys’

fees, i.e. whether the plaintiff has “substantially prevailed”

on his FOIA claim.     Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 524 (D.C. Cir. 2011); see also

Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1495 (D.C.

Cir. 1984).   A party may “substantially prevail” by either

obtaining relief through “a judicial order, or an enforceable

written agreement or consent decree,” 5 U.S.C. §

552(a)(4)(E)(ii)(I), or by eliciting a “voluntary or unilateral




                                   3
 
change in position by the agency, if the complainant’s claim is

not insubstantial,” id. § 552(a)(4)(E)(ii)(II).1

              Once the court determines that the plaintiff has

substantially prevailed, it must then, in the exercise of its

discretion, determine whether the plaintiff is “entitled” to

attorneys’ fees.                                     See Weisberg, 745 F.2d at 1495, 1498.   In

making that determination, the court analyzes four factors:

(1) the benefit of the release to the public; (2) the commercial
                                                            
              1
       Prior to 2001, the D.C. Circuit construed fee eligibility
under the “catalyst theory,” pursuant to which, a plaintiff
“‘substantially prevailed’ not only when he obtained an official
disclosure order from a court, but also when he substantially
caused the government to release the requested documents before
final judgment.” Brayton, 641 F.3d at 524-25 (citing Summers v.
Dep’t of Justice, 569 F.3d 500, 502 (D.C. Cir. 2009)). In 2001,
the Supreme Court explicitly rejected the catalyst theory,
holding that plaintiffs were only eligible for attorney fees if
they were “awarded some relief by [a] court.” Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S.
598, 603 (2001). The D.C. Circuit confirmed that the Buckhannon
standard applied to FOIA cases in Oil, Chemical & Atomic Workers
International Union, AFL-CIO v. Department of Energy, 288 F.3d
452, 456-57 (D.C. Cir. 2002). However, in 2007, Congress
enacted the OPEN Government Act, which abrogated the Buckhannon
rule in the FOIA context and revived the possibility of FOIA fee
awards in the absence of a court decree. See OPEN Government
Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (2007). As the
D.C. Circuit has recently made clear, “[t]he purpose and effect
of [the OPEN Government Act] . . . was to change the
‘eligibility’ prong back to its pre-Buckhannon form.” Brayton,
641 F.3d at 525; see also N.Y.C. Apparel F.Z.E. v. U.S. Customs
& Border Prot. Bureau, 563 F. Supp. 2d 217, 221 (D.D.C. 2008)
(“[T]he language found in [5 U.S.C. § 552(a)(4)(E)(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.” (internal quotation marks and citation omitted)).
                                                                   4
 
benefit of the release to the plaintiff; (3) the nature of the

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

of the agency’s withholding.   See id. at 1498; see also Davy v.

CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008); Tax Analysts v. U.S.

Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992).     “No one

factor is dispositive,” Davy, 550 F.3d at 1159, and entitlement

is “a matter of district court discretion,” Tax Analysts, 965

F.2d at 1094.

III. ANALYSIS

     Plaintiffs argue that they are eligible for attorneys’ fees

because this litigation was the catalyst for the release of the

requested records.   See Pls.’ Mem. at 4-6.   In opposition,

defendant contends that the reason for the Coast Guard’s delay

in releasing the records was “the product of a consistent and

reasonably diligent process,” which was unrelated to plaintiffs’

initiation of this action.   Def.’s Opp’n at 6-7.

     As noted above, the key question under the “catalyst

theory” is whether “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).    In other

words, plaintiffs must show that “prosecution of the action

could reasonably be regarded as necessary to obtain the

information, and that a causal nexus exists between the action

                                 5
 
and the agency’s surrender of that information.”     Id. at 588

(internal citations omitted); see also Short v. U.S. Army Corps

of Eng’rs, 613 F. Supp. 2d 103, 106 (D.D.C. 2009).     Although an

agency cannot prevent an award of attorneys’ fees simply by

releasing the requested information before the plaintiff obtains

a court order, “the mere filing of the complaint and the

subsequent release of the documents is insufficient to establish

causation.”   Weisberg, 745 F.2d at 1496.   Something more than

“post hoc, ergo propter hoc must be shown.”    Public Law Educ.

Inst. v. Dep’t of Justice, 744 F.2d 181, 183 (D.C. Cir. 1984).

If, rather than the threat of an adverse court order, “an

unavoidable delay accompanied by due diligence in the

administrative process 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 [its] suit.”     Church of

Scientology, 653 F.2d at 588 (internal citations omitted); see

also Short, 613 F. Supp. 2d at 106 (“The causation requirement

is missing when disclosure results not from the suit but from

delayed administrative processing.”).

     According to defendant, shortly after receiving plaintiffs’

FOIA request, the Coast Guard’s Data Administration and FOIA

Division (“DAFD”) began processing the request.    See Def.’s

Opp’n at 2.   Defendant asserts that DAFD searched for and

compiled responsive records between May 2010 and July 2010.       See

                                 6
 
id. (citing Supplemental Declaration of Dawn Patterson

(“Patterson Decl.”), Ex. 1, at ¶ 5).       After obtaining

plaintiffs’ consent to redact personal information, DAFD was

prepared to release the documents, but it determined that

certain documents contained potentially sensitive law

enforcement information and needed to be reviewed by the legal

office.    Id. (citing Patterson Decl. at ¶¶ 5-6).     DAFD sent the

responsive documents to the legal office on August 24, 2010.

Patterson Decl. at ¶ 7.     After reviewing the documents, a legal

officer returned the documents to DAFD for corrections on

February 14, 2011.    Id.   On March 3, 2011, once corrections and

a final review had been concluded, the documents were provided

to plaintiffs in full, with the exception of redactions for

personal information.   Def.’s Opp’n at 2 (citing Patterson Decl.

at ¶ 7).   During this same time, the Coast Guard’s Seventh

District Legal Office (“D7”) was also in the process of

searching for and compiling responsive documents.        Id.   “Due to

the volume of the records [1,125 pages], considerable time was

needed” to complete the review.        Id. at 3 (citing Supplemental

Declaration of LT Anna E. Steel (“Steel Decl.”), Ex. 2, at ¶ 7).

Defendant asserts that D7 compiled and reviewed the records

“without knowledge of Plaintiffs’ December 15, 2010 complaint,

and on May 25, 2011 released all 1,125 pages of responsive

records to Plaintiffs.”     Id. (citing Steel Decl. at ¶¶ 8-9).

                                   7
 
     Defendant has provided a detailed timeline of events

leading up to the release of the requested records.    As that

timeline makes clear, multiple divisions within the Coast Guard

had already begun coordinating and processing the plaintiffs’

request before plaintiffs filed their lawsuit in December 2010.

Similarly, in Bigwood v. Defense Intelligence Agency, the court

was persuaded by the fact that defendant had expended

considerable time and effort processing the plaintiff’s request

prior to the filing of his lawsuit.     See 770 F. Supp. 2d 315,

321 (D.D.C. 2011).   There, even though the agency’s processing

of the plaintiff’s FOIA request was “extraordinarily delayed,”

because the defendant agency had conducted multiple searches and

several rounds of document review prior to the commencement of

the suit, the court concluded that plaintiff could not establish

a causal nexus between the filing of his complaint and the

defendant’s release of documents.     Id.; see also Alliance for

Responsible CFC Policy, Inc. v. Costle, 631 F. Supp. 1469, 1470

(D.D.C. 1986) (explaining that because the plaintiff’s FOIA

request was “undeniably broad and required searches by several

departments within the [agency,] . . . the [agency’s] failure to

disclose in timely fashion appears to be an unavoidable delay

accompanied by due diligence in the administrative processes and

not the result of agency intransigence” (internal quotation

marks omitted)); Lovell v. Dep’t of Justice, 589 F. Supp. 150,

                                 8
 
154 (D.D.C. 1984) (finding that detailed documentation of the

defendant agency’s search revealed that its delay in responding

to the FOIA request was due to “unavoidable delay accompanied by

due diligence in the administrative process,” and that it did

not “ignore” or “negligently fail” to respond to the plaintiff’s

inquiries (citations omitted)).

     As the D.C. Circuit has stated, “the causation inquiry must

take into account whether the agency upon actual and reasonable

notice of the request, made a good faith effort to search out

material and to pass on whether it should be disclosed.”

Weisberg, 745 F.2d at 1496 (internal quotation marks and

citations omitted).   In Electronic Privacy Information Center v.

Department of Homeland Security, the case upon which plaintiffs

rely in their notice of supplemental authority, the court noted

that the agency “[did] not claim to have conducted any

substantive searches for records prior to the commencement of

the litigation.”   811 F. Supp. 2d 216, 233 (D.D.C. 2011).

Therefore, the court concluded that, although the agency alleged

that its failure to disclose was due to “backlog as well as

administrative error,” such “generic statements—without any

evidence demonstrating that a backlog existed or that the agency

performed its due diligence in processing the plaintiff’s FOIA

requests—are insufficient to show that [the agency] experienced



                                  9
 
‘unavoidable delay’ despite ‘due diligence in the administrative

process.’”                         Id. (internal citations omitted).

              Here, by contrast, the Court is persuaded that defendant

made a good faith effort to search for information and respond

to plaintiffs’ request.                                        Defendant’s declarations make clear

that the delay in the Coast Guard’s release was not due to

intransigence, but rather was the result of a diligent, ongoing

process that began before the initiation of the instant lawsuit.

Moreover, plaintiffs have provided no evidence to suggest that a

causal nexus exists between the filing of plaintiffs’ action and

the agency’s surrender of information.                                       Under these

circumstances, the Court concludes that plaintiffs have not

“substantially prevailed” and are thus not eligible for

attorneys’ fees.                                     Accordingly, plaintiffs’ motion for attorneys’

fees must be denied.2


                                                            
              2
       Because the Court concludes that plaintiffs are not
“eligible” for attorneys’ fees, the Court need not determine
whether they are separately “entitled” to attorneys’ fees.
However, even if the Court were to analyze the claim for
attorneys’ fees under the four factors set forth above, the
Court would conclude that plaintiffs are also not entitled to
attorneys’ fees. With respect to the first factor, the benefit
of release to the public, plaintiffs have not demonstrated how
the release of records related to the detention of the Havnor
and its crew “add[ed] to the fund of information that citizens
may use in making vital political choices.” Cotton v. Heyman,
63 F.3d 1115, 1120 (D.C. Cir. 1995) (internal citations
omitted). Rather, as plaintiffs concede, the reason for their
FOIA request was to learn why the Coast Guard stopped and
searched their ship. See Pls.’ Mem. at 8. This case plainly
falls under the line of cases involving plaintiffs who seek
                                                                     10
 
IV.           CONCLUSION

              For the foregoing reasons, the Court hereby DENIES

plaintiffs’ motion for attorneys’ fees.                                                                                An appropriate Order

accompanies this Memorandum Opinion.

Signed:                      Emmet G. Sullivan
                             United States District Court Judge
                             March 23, 2012




                                                                                                                                                                                               
                                                                                                                                                                                               
disclosure for commercial benefit or personal reasons and thus
need no incentive to file suit. See Davy, 550 F.3d at 1159;
Cotton, 63 F.3d at 1120. The second and third factors, the
commercial benefit to plaintiffs and plaintiffs’ interest in the
records, are often considered together. Plaintiffs argue that
they will not receive any commercial benefit from the release of
the records. Pls.’ Mem. at 8-9. “The proper question, however,
is not whether the disclosures resulted in commercial benefit,
but whether the potential for private commercial benefit was
sufficient incentive to encourage [plaintiff] to pursue his FOIA
claim.” Costle, 631 F. Supp. at 1471 (internal citation and
quotation marks omitted). Here, the Court finds that plaintiffs
had a significant personal interest in the information released.
See, e.g., Cotton, 63 F.3d at 1120; Short, 613 F. Supp. 2d at
107 (finding that plaintiff was not entitled to fees on the
ground that his FOIA request was motivated by an interest in the
Army Corps of Engineers’ progress on his petition and was thus
pursued for his own commercial benefit). Finally, the fourth
factor—whether the agency’s opposition to disclosure “had a
reasonable basis in law” —is inapplicable here, where the Coast
Guard was not opposed to disclosure, “recalcitrant in its
opposition . . . or otherwise engaged in obdurate behavior.”
Tax Analysts, 965 F.2d at 1097. Instead, and as discussed
supra, the Court is persuaded that defendant was reasonably
delayed in preparing its production. Therefore, the Court
finds, in its discretion, that plaintiffs are not entitled to
attorneys’ fees.
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