                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
______________________________________
                                       )
NATIONAL SECURITY COUNSELORS, )
                                       )
            Plaintiff,                 )
                                       )
        v.                             )   Civil Action No. 11-442 (RMC)
                                       )
CENTRAL INTELLIGENCE AGENCY,           )
et al.,                                )
                                       )
            Defendants.                )
______________________________________ )

                                            OPINION

               National Security Counselors seeks an award of attorney’s fees after prevailing in

a case against the Central Intelligence Agency and Department of Defense under the Freedom of

Information Act. Defendants oppose the petition, arguing that National Security Counselors

hardly prevailed, seeks exaggerated fees, and is not a separate entity from its lawyer, Kelly B.

McClanahan. The Court agrees that the record does not support Mr. McClanahan’s asserted

attorney-client relationship with National Security Counselors. Of course, a lawyer can submit

FOIA requests and litigate their denial, but he cannot claim fees without a true, independent

client. There is no such client here. Accordingly, the Court will deny the request for costs and

attorney’s fees.

                                            I. FACTS

               In 2010, Kelly B. McClanahan submitted four Freedom of Information Act

(FOIA), 5 U.S.C. § 552, requests on behalf of National Security Counselors: two to the Central

Intelligence Agency (CIA), and two to the Defense Intelligence Agency (DIA), a component of

the Department of Defense (DOD) (collectively, Defendants). Mr. McClanahan signed each



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request on National Security Counselors letterhead. See Defs. Opp’n [Dkt. 59], Ex. A (FOIA

Requests) [Dkt. 59-1] at 2–5, 8–10, 12–15, 19–21.

               Mr. McClanahan’s first FOIA request was submitted to CIA on April 23, 2010,

requesting “copies of all current Central Intelligence Agency . . . regulations, policy statements,

guidelines, memoranda, training materials, handbooks, manuals, checklists, worksheets,

instructions, and similar documents on the topic of Mandatory Declassification Review . . . .” Id.

at 3. His second FOIA request to CIA was submitted on November 30, 2010, requesting the

“special procedures for the [Mandatory Declassification] [R]eview of information pertaining to

intelligence activities (including special activities), or intelligence sources or methods developed

by the Director of Central Intelligence pursuant to Sections 3.6(e) of Executive Order 12,958 and

3.5(e) of Executive Order 13,292.” Id. at 8.

               On December 10, 2010, Mr. McClanahan submitted a third FOIA request to DIA,

seeking records that were responsive to a FOIA request submitted by Michael Ravnitzky in

1997. Id. at 12. On the same day, he submitted a fourth FOIA request, again to DIA. This time,

he requested all records pertaining to the administrative processing of Mr. Ravnitzky’s FOIA

request. Id. at 19.

           A. FOIA Processing and Litigation

               National Security Counselors filed a Complaint on February 28, 2011, which

included each FOIA request as a separate Count. See Compl. [Dkt. 1] ¶¶ 7–33. Defendants filed

a partial motion to dismiss, arguing, inter alia, that National Security Counselors failed to

exhaust administrative remedies with respect to its claim against twelve “John Doe” agencies,

that is, unidentified agencies that created some of the records at issue in the Complaint. Mot. to

Dismiss [Dkt. 9] at 5–7. On July 12, 2011, National Security Counselors filed an Amended



                                                 2
Complaint omitting allegations against “John Doe” agencies that had not been administratively

exhausted. See Am. Compl. [Dkt. 18].

               One year later, the parties notified the Court that they had settled Count Three of

the Amended Complaint, i.e., Mr. McClanahan’s third FOIA request to DIA. See Joint Status

Report [Dkt. 33] ¶ 4.

               On March 8, 2013, Defendants moved for summary judgment on the remaining

Counts, which included Mr. McClanahan’s first and second FOIA requests to CIA and his fourth

FOIA request to DIA. See Mot. for Summ. J. [Dkt. 45]. In their motion, Defendants argued that

(1) CIA conducted a reasonable search and produced documents responsive to the first FOIA

request; (2) Defendants satisfied the second FOIA request because, after conducting reasonable

searches, CIA did not locate any responsive documents; and (3) Defendants properly withheld

certain information pursuant to FOIA exemptions. Id. at 10–35. In a footnote, Defendants noted

that the parties had “settled the substantive issues related to [Mr. McClanahan’s fourth FOIA

request] sent to DIA.” Id. at 6 n.1.

               On April 16, 2013, National Security Counselors responded with a Notice of

Voluntary Dismissal, which noted that it was “satisfied with the information provided in

Defendants’ filings.” Notice of Voluntary Dismissal [Dkt. 51] at 1. The Court granted the

Notice of Voluntary Dismissal on April 17, 2013. See April 17, 2013 Minute Order. The instant

fee petition followed thereafter.

           B. Mr. McClanahan and National Security Counselors

               Mr. McClanahan has focused his legal career on the intersection between national

security law and information and data privacy law. Petition for Costs and Fees [Dkt. 55], Ex. A

(McClanahan Decl.) [Dkt. 55-1] ¶ 2. He obtained a Master of Arts in Security Studies from



                                                 3
Georgetown University in 2003, received his Juris Doctor from American University in 2007,

and then earned a Master of Laws (LL.M.) in national security law from Georgetown University

Law Center in 2009. Id. From 2007 to 2009, Mr. McClanahan was of counsel to the Law Office

of Mark S. Zaid, P.C., where he specialized in national security law, “including whistleblowers,

security clearances, prepublication review, and FOIA/[Privacy Act] litigation.” Id., Ex. B

(McClanahan Resume) [Dkt. 55-2] at 2. He was of counsel to Kohn, Kohn, & Colapinto, LLP,

from 2009 to 2012, with the same national security specialization. Id. at 1.

               The parties agree to all relevant facts concerning National Security Counselors’s

charter and incorporation. On August 6, 2009, Mr. McClanahan chartered National Security

Counselors as an unincorporated association in the Commonwealth of Virginia. Pl. Reply

[Dkt. 61] at 4; Defs. Opp’n at 5. National Security Counselors was incorporated on January 3,

2011, under the name “National Security Counselors, Inc.” Defs. Opp’n at 5; id., Ex. B (NSC

Incorporation Documents) [Dkt. 59-2] at 2.

               However, National Security Counselors’s organizational membership is less clear.

Mr. McClanahan describes himself as “Founder, CEO of a non-profit organization dedicated to

educating the public about national security issues, influencing . . . legislation, and providing

assistance . . . in security-related legal or administrative proceedings.” McClanahan Resume at

1. In briefing, he describes National Security Counselors as a “non-profit public interest law

firm,” Petition for Costs and Fees at 3, and opaquely refers to his “partner [and] interns,”

McClanahan Decl. ¶ 7. Thus, at first glance, it is unclear whether any other individuals work

alongside Mr. McClanahan on behalf of National Security Counselors.

               The organization’s documents and website do not clarify the issue. On National

Security Counselors’s letterhead, Mr. McClanahan is identified as the Executive Director and



                                                  4
Bradley Moss as the Deputy Executive Director. See FOIA Requests at 3. According to the

website for National Security Counselors, Mr. Moss received his Juris Doctor from American

University in 2006, and then joined the law firm of Mark S. Zaid, P.C., where he is a practicing

associate. See Board of Directors, NAT’L SECURITY COUNS.,

http://nationalsecuritylaw.org/board_of_directors.html (last visited Feb. 1, 2014). The website

further notes that National Security Counselors’s Board of Directors consists of Mr.

McClanahan, Mr. Moss, and Sean Heare, an “Information Director” who works for SRA

International. See id. Mr. Heare is not mentioned elsewhere as a member of National Security

Counselors. See id.

                                    II. LEGAL STANDARD

               Under FOIA, “district courts ‘may’ award attorney’s fees and costs to members of

the public who substantially prevail in FOIA litigation against the government.” Tax Analysts v.

Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992) (quoting 5 U.S.C. § 552(a)(4)(E)). The

decision to award attorney’s fees is committed to the discretion of the district court, which must

consider the facts of the case and the relevant factors. Id. at 1094.

               As a threshold matter, an attorney must demonstrate his or her eligibility for

attorney’s fees under the statute. In Kay v. Ehrler, 900 F.2d 967 (6th Cir. 1990), the Sixth

Circuit held that a pro se attorney could not recover attorney’s fees under the fee-shifting

provision of a civil rights statute. In so holding, the Court reasoned that the purpose of fee-

shifting provisions was best served where there was a “filtering of meritless claims by objective

attorneys.” Id. at 971 (citing Falcone, 714 F.2d at 647).

               On appeal, a unanimous Supreme Court affirmed, holding that a pro se litigant

who was also an attorney could not be awarded attorney’s fees. Kay v. Ehrler, 499 U.S. 432



                                                  5
(1991). The Court began with the observation that “the word ‘attorney’ assumes an agency

relationship, and it seems likely that Congress contemplated an attorney-client relationship as the

predicate for an award under [42 U.S.C.] § 1988.” Id. at 435–36. The Court continued with a

policy analysis that extends Kay v. Ehrler beyond the specific statute discussed in that case.

Justice Stevens, writing for the Court, observed that “[e]ven a skilled lawyer who represents

himself is at a disadvantage in contested litigation.” Id. at 437. The Court then concluded:

               A rule that authorizes awards of counsel fees to pro se litigants—
               even if limited to those who are members of the bar—would create
               a disincentive to employ counsel whenever such a plaintiff
               considered himself competent to litigate on his own behalf. The
               statutory policy of furthering the successful prosecution of
               meritorious claims [by allowing recovery of attorneys’ fees] is
               better served by a rule that creates an incentive to retain counsel in
               every such case.
Id. at 438. Thus, the Supreme Court affirmed the Sixth Circuit and its reliance on Falcone v.

IRS.

               The analysis in Falcone v. IRS is particularly helpful here. In that case, the Sixth

Circuit explained:

               The award of attorney’s fees to successful FOIA plaintiffs was
               intended to relieve plaintiffs with legitimate claims of the burden
               of legal costs; it was not intended as a reward for successful
               claimants or as a penalty against the government. . . . Since the
               [pro se lawyer] never assumed the burden [of legal fees] which
               Congress intended to ease, an award of fees is inappropriate.
               ...
               A final concern in denying attorney’s fees to pro se plaintiffs is the
               fear of creating a “cottage industry” for claimants using the Act
               solely as a way to generate fees rather than to vindicate personal
               claims. . . . We do not believe that Congress intended to so
               subsidize attorneys without clients.
               ...
               Both a client and an attorney are necessary ingredients for an
               award of fees in a FOIA case.

                                                 6
Falcone, 714 F.2d at 647–48.

                After Kay v. Ehrler, the D.C. Circuit reversed its prior decision in Cuneo v.

Rumsfeld, 553 F.2d 1360, 1366 (D.C. Cir. 1977), which had held that a pro se attorney could

recover attorney’s fees under FOIA. See Burka v. U.S. Dep’t of Health & Human Servs., 142

F.3d 1286, 1289 (D.C. Cir. 1998) (“It is obvious from the lengthy discussion . . . in Kay that the

Supreme Court intended its ruling to apply beyond section 1988 cases to other similar fee-

shifting statutes, particularly the one in FOIA.”). The D.C. Circuit concluded that “[i]t is, in

short, impossible to conclude otherwise than that pro se litigants who are attorneys are not

entitled to attorney’s fees under FOIA.” Id.

                                          III. ANALYSIS

                Mr. McClanahan notes that National Security Counselors was chartered in 2009,

before the organization issued FOIA requests in this case, and received an Employer

Identification Number from the Internal Revenue Service which allegedly denotes that the

organization was a distinct legal entity. Pl. Reply at 4. In addition, this case was filed on

February 28, 2011, nearly two months after National Security Counselors was incorporated on

January 3, 2011. But these facts do not end the inquiry as to whether National Security

Counselors is sufficiently distinct from Mr. McClanahan to establish an attorney-client

relationship.

                It is true that this Circuit permits an “organization” to recover attorney’s fees for

its “in-house counsel” where the attorney acts as an agent on behalf of the organization. In

Baker & Hostetler, 473 F.3d 312 (D.C. Cir. 2006), the D.C. Circuit held that members of a law

firm were “sufficiently independent” to represent the firm in a FOIA case, therefore justifying an

award of attorneys’ fees, id. at 325. In dissent, Judge Henderson explained that in Kay v. Ehrler,



                                                  7
the Supreme Court distinguished between a sole practitioner representing his own firm and a

lawyer who serves as an agent of his or her client and therefore can exercise independent

judgment. Id. at 327–29 (Henderson, J., dissenting). While Judge Henderson’s dissent is not

binding, it further amplifies the distinction between independent agents and pro se attorneys.

               The record shows little, if any, distinction between Mr. McClanahan and National

Security Counselors. The organization was not a legal entity distinct from Mr. McClanahan

when he submitted FOIA requests in its name in 2010. Defs. Sur-Reply [Dkt. 66] at 2.

Moreover, every critical leadership role in the organization belongs to Mr. McClanahan: he is

Founder, Executive Director and, while there is some conflicting authority, it appears that he is

also the sole officer of the organization. Compare McClanahan Resume at 1, and FOIA

Requests at 3, with Officers, NAT’L SECURITY COUNS.,

http://nationalsecuritylaw.org/officers.html (listing Jeff Stein, “News Media Counselor,” as the

sole officer of National Security Counselors) (last visited Feb. 1, 2014). Nor does National

Security Counselors hold itself out as a separate entity. Despite its formal incorporation, the

record contains no evidence that National Security Counselors publicly identifies itself as an

incorporated entity, or in any other way distinct from Mr. McClanahan. 1

               The proceedings in this case further demonstrate that National Security

Counselors is a one-man operation. Mr. McClanahan acknowledges that he is “both NSC’s

counsel and the Executive Director of NSC, in effect both the counsel and the party.” Defs.

Opp’n, Ex. E (NSC Reply Brief) [Dkt. 59-5] at 4 n.1. He was the requester for all FOIA requests

issued and is the sole attorney on behalf of National Security Counselors here. In fact, Mr.

McClanahan served as both requestor and counsel for the large number of FOIA requests that
1
  National Security Counselors is not even identified as an incorporated entity on the docket in
this case. See Nat’l Sec. Counselors v. CIA, Civ. No. 11-442 (D.D.C. filed Feb. 28, 2011).

                                                 8
National Security Counselors submitted to Defendants in the last year. Id., Ex. C (Lutz Decl.)

[Dkt. 59-3] ¶¶ 4–5; id., Ex. D (Williams Decl.) [Dkt. 59-4] ¶ 3.

               In 2013, Mr. Moss filed one pleading in another case in the name of National

Security Counselors, where he identified himself as an associate with Mark S. Zaid P.C. Mr.

McClanahan explains that Mr. Moss has access to the court’s electronic case filing system as an

associate with Mark Zaid, and that Mr. Zaid approved the use of this law firm identification

when filing on behalf of National Security Counselors. Pl. Reply, Ex. C (McClanahan Supp.

Decl.) [Dkt. 61-1] ¶ 8. However, as the only evidence that anyone other than Mr. McClanahan

actually works for National Security Counselors, this is too slim a reed to establish that National

Security Counselors exists as more than Mr. McClanahan as a sole practitioner.

               The website for National Security Counselors states:

               [National Security Counselors] exists to perform four primary
               functions: to lawfully acquire from the government material related
               to national security matters and distribute it to the public, to use
               this material in the creation of original publications discussing the
               respective subjects, to advocate for intelligent reform in the
               national security and information and privacy arenas, and to
               provide a low-cost alternative to certain deserving clients involved
               in security law or information and privacy law-related proceedings.
NAT’L SECURITY COUNS., http://nationalsecuritylaw.org (last visited Feb. 1, 2014). With the

exception of the last purpose, i.e., to represent clients in security or privacy-related proceedings,

none of the organization’s activities involves a traditional attorney-client relationship. In this

case, National Security Counselors is not representing a “deserving client” because the

organization has filed FOIA requests on its own behalf. In short, either National Security

Counselors constitutes the “client” or there is none. On this record, the Court finds that there is

no client separate from Mr. McClanahan. Despite his experience in national security law, his

status as a pro se attorney renders him ineligible for an award of attorney’s fees.


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               Finally, the Court notes that Mr. McClanahan has submitted fifty-nine FOIA

requests to CIA in Fiscal Year 2012 alone. 2 Lutz Decl. ¶ 4. There are also five cases pending,

including the instant case, that involve forty-seven FOIA requests from National Security

Counselors to CIA. Id. ¶ 5. If the Court were to award attorney’s fees here, Mr. McClanahan’s

practice could become the “cottage industry” that raised concerns for the Sixth Circuit. See

Falcone, 714 F.2d at 648. It is undeniable that FOIA permits an individual to request disclosure

from government agencies. But without a true client, the Government is under no obligation to

subsidize self-serving activity.

                                      IV. CONCLUSION

               Accordingly, Plaintiff’s Petition for Costs and Attorneys’ Fees [Dkt. 55] is

DENIED. A memorializing Order accompanies this Opinion.



Date: February 12, 2014                                             /s/
                                                     ROSEMARY M. COLLYER
                                                     United States District Judge




2
  This figure includes only requests made by National Security Counselors directly to CIA; it
does not include requests that were referred to CIA from other agencies. This figure is also
limited to FOIA requests and does not include requests for Mandatory Declassification Review
of CIA’s records. As a result, Mr. McClanahan’s submissions to CIA likely exceeded fifty-nine
requests in Fiscal Year 2012. Lutz Decl. ¶ 4 n.1.
                                                10
