mckinley v fhfa, appellee fhfa brief, usca dc circuit

[NOT YET SCHEDULED FOR ORAL ARGUMENT]

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 12-5267

VERN MCKINLEY,

Plaintiff-Appellant,

v.

FEDERAL HOUSING FINANCE AGENCY,

Defendants-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RESPONSE BRIEF FOR THE APPELLEE

STUART F. DELERY Principal Assistant Attorney General RONALD C. MACHEN JR. United States Attorney LEONARD SCHAITMAN STEVE FRANK (202) 514-4820 Attorneys, Appellate Staff Civil Division, Room 7245 Department of Justice 950 Pennsylvania Ave.NW Washington, D.C. 20530

USCA Case #12-5267 Document #1419537 Filed: 02/08/2013 of 37

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TABLE OF CONTENTS GLOSSARY OF ABBREVIATIONS STATEMENT OF JURISDICTION…………………………………….. ……1 STATEMENT OF THE ISSUE ................................................................. 1 STATEMENT OF THE CASE .................................................................. 1

A. Nature of the Case .................................................................. 1 B. Statement of Facts .................................................................. 2 STANDARD OF REVIEW......................................................................... 6 SUMMARY OF ARGUMENT ................................................................... 6 ARGUMENT ............................................................................................. 9 Introduction ...................................................................................... 9 I. PLAINTIFF”S ELIGIBILITY FOR ATTORNEYS’ FEES ............................................................. 10 II. PLAINTIFF IS NOT ENTITLED TO ATTORNEYS’ FEES ............................................................. 14 A. The Limited Factual Information Produced in This Litigation Did Not Benefit the Public ......................................................... 14 B. Plaintiff’s Limited Interest in Publicly Disseminating the Requested Information Does Not Weigh in his Favor ....................................... 18


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C. The “Reasonableness” Factor Does Not Support Plaintiff’s Claim of Entitlement .................................................................. 20 III. PLAINTIFF’S REQUEST FOR $15,852.50 IN ATTORNEYS’ FEES AND COSTS IS UNREASONABLE AND EXCESSIVE................................. 24 CONCLUSION ........................................................................................ 27 CERTIFIED OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A) CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES Page Cases: Beltranena v. U.S. Dep't of State, No. 09-cv-01457, 2011 WL 5022789 (D.D.C. Oct. 21, 2011) .................................................................... 20 Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011).................................................. 6, 9-10 Chesapeake Bay, Found. v. Dept. of Agriculture, 11 F.3d 211 (D. C. Cir. 1993) .............................................................................. 21 *Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995) ....................................................... 10, 14, 15, 16, 17 Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977)……………………...21 Davy v. CIA, 456 F.3d 162 (D.C. Cir. 2006)………………………………14 Davy v. CIA, 550 F.3d 1155 (D.C. Cir. 2008)……………………...…18, 19 *Farrar v. Hobby, 506 U.S. 103 (1992) ....................................... 10, 13, 24 Fenster v. Brown, 617 F.2d 740 (D.C. Cir. 1979) ............................ 14, 17 Horsehead Indus. Inc. v. EPA, 999 F.Supp. 59 (D.D.C.1998) ................................................................................... 16 * Judicial Watch, Inc. v. U.S. Dep't of Commerce,

470 F.3d 363 (D.C. Cir. 2006)..................................................... 8, 24 * Cases chiefly relied upon are marked with an asterisk.


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Klamath Water Users Protective Ass'n v. U.S. Department of the Interior, 18 Fed.Appx. 473 (9th Cir. 2001) ................................................................................ 18 Maydak v. U.S. Dep't of Justice, 579 F. Supp. 2d 105 (D.D.C. 2008) .................................................................................. 20 McKinley v. Federal Housing Finance Agency,

789 F. Supp.2d 85 (D.D.C. 2011)...................................................... 3 Mobley v. DHS, No. 11-2074, 2012 WL 6103000 (D.D.C. Dec. 10, 2012) .............................................................. 12, 21 Nationwide Bldg. Maint., Inc. v. Sampson,

559 F.2d 704 (D.C. Cir. 1977)............................................... 9, 21, 22 Nat'l Ass'n of Concerned Veterans v. U.S. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982) ............................................................................... 25 Pac Energy Inst. v. IRS, No. 94-36172, 1996 WL 14244 (9th Cir. Jan. 16, 1996) .................................................................. 13 Tax Analysts v. Dept. of Justice, 965 F.2d 1092 (D.C. Cir. 1992) ..................................................................................... 17 Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist.,

489 U.S. 782 (1989) ........................................................................ 13 Union of Concerned Scientists v. NRC, 824 F.2d 1219 (D.C. Cir. 1987) .......................................................................... 12-13


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Statutes: Freedom of Information Act: 5 U.S.C. § 552(a)(4)(B) .................................................................... 1 5 U.S.C. § 552(a)(4)(E) ..................................................................... 5 5 U.S.C. § 552(a)(4)(E)(i) ................................................................. 9 Housing and Economic Recovery Act of 2008: 12 U.S.C. §§ 4501 et seq. ................................................................. 2 12 U.S.C. § 4511(b) ........................................................................... 2 12 U.S.C. § 4517 ............................................................................. 15 28 U.S.C. § 1291 ...................................................................................... 1 Rules: Fed. R. App. P. 4(a)(1)(B) ........................................................................ 1


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GLOSSARY OF ABBREVIATIONS Fannie Mae Federal National Mortgage Association Freddie Mac Federal Home Loan Mortgage Corporation FOIA Freedom of Information Act JA Joint Appendix


STATEMENT OF JURISDICTION

Plaintiff invoked the jurisdiction of the district court under the

Freedom of Information Act, 5 U.S.C. §552(a)(4)(B). The district court

entered final judgment, denying plaintiff’s motion for attorneys’ fees,

disposing of all claims as to all parties, on June 27, 2012. Joint

Appendix (“JA”) 34. Plaintiff filed a timely notice of appeal on August

20, 2012. Id. at 40. See Fed. R. App. P. 4(a)(1)(B). This Court has

jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUE

Whether the district court abused its discretion in denying

plaintiff’s motion for attorneys’ fees where plaintiff was not entitled to

fees.

STATEMENT OF THE CASE

A. Nature of the Case.

This action arises out of a Freedom of Information Act (“FOIA”)

request that plaintiff submitted to the Federal Housing Finance Agency

(“FHFA”), seeking documents related to the September 7, 2008

announcement by FHFA and the U.S. Department of the Treasury that

FHFA had decided to place the Federal National Mortgage Association


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(“Fannie Mae”) and the Federal National Home Loan Mortgage

Corporation (“Freddie Mac”) into conservatorship. FHFA found three

responsive documents, which it withheld under FOIA Exemption 5 on

the basis of, inter alia, the deliberative process privilege. Plaintiff filed

suit and pursued disclosure of two of the three documents.

In response to an order of the district court on August 26, 2011, a

small portion of segregable factual information was released to plaintiff.

Otherwise, the district court determined that the agency had properly

withheld the bulk of the documents under Exemption 5 and granted

FHFA’s motion for summary judgment. Plaintiff then sought

$15,000.00 in fees on the basis of the limited factual material released

as segregable. The district court denied plaintiff’s motion for fees and

plaintiff pursued this appeal.

B. Statement of Facts.

FHFA was created in July 2008 by the Housing and Economic

Recovery Act of 2008, 12 U.S.C. §§ 4501 et seq. Among other things,

FHFA serves as the primary regulatory and oversight authority for

Fannie Mae and Freddie Mac. See 12 U.S.C. § 4511(b). In September

2008, FHFA placed these enterprises in conservatorship, with the goal


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of stabilizing their operations and finances. See McKinley v. Federal

Housing Finance Agency, 789 F. Supp.2d 85, 86 (D.D.C. 2011).

In May 2010, plaintiff submitted his FOIA request for documents

relating to FHFA and Treasury’s decision to place Fannie Mae and

Freddie Mac into conservatorship. J.A. 6, ¶ 5. Plaintiff specifically

sought “any and all communications and records concerning or relating

to the assessment of an adverse impact on systemic risk in addressing

Fannie Mae and Freddie Mac, and in particular how the FHFA and the

Department of the Treasury determined that conservatorship was the

preferred option to avoid any systemic risk of placing Fannie Mae and

Freddie Mac into receivership.” Id.

FHFA notified plaintiff that it had searched the agency’s files and

records and located three documents responsive to his request. The

agency advised plaintiff that the three documents were being withheld

in their entirety on the basis of the deliberative process privilege and

attorney work product doctrine under FOIA Exemption 5. See 789 F.

Supp.2d at 87.

Plaintiff subsequently filed this lawsuit claiming that FHFA had

violated FOIA by failing to produce any and all non-exempt records


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responsive to Plaintiff’s FOIA request within the required time limit.

JA 7, ¶ 15. FHFA moved for summary judgment, contending that it

had conducted a reasonable search for responsive records and properly

withheld the documents at issue pursuant to FOIA Exemption 5.

Clerk’s Record (“CR”) 9-1. Plaintiff did not challenge the sufficiency of

FHFA’s search, nor did he contest FHFA’s withholding of the first of

three responsive documents. CR 15 at 3. After reviewing FHFA’s

Vaughn index, the district court concluded that “the documents are

protected by the deliberative-process privilege.” Id. at 5.

The court then conducted an in camera review and held that the

documents were not protected by the attorney work product privilege

and ordered FHFA to disclose “any portions of those documents that

were reasonably segregable from the material therein that is protected

by the deliberative-process privilege.” CR 15 at 4.

In response to the court’s order, FHFA conducted a segregability

analysis and released all reasonably segregable non-privileged

information from the two contested documents. The released factual

portions of the documents consist primarily of pages setting forth the


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provisions of the Housing and Economic Recovery Act of 2008, and to

the legal authority FHFA would possess as a conservator. CR 18-1.

After FHFA produced this material, plaintiff again requested the

court to conduct an in camera review and order the government to

produce any additional segregable material. The court then conducted

a second in camera review and concluded that FHFA has “met its

burden” and had “appropriately disclosed all factual content that it

could reasonably segregate and that is not inextricably intertwined with

exempted material.” CR 21 at 4. Accordingly, the court granted

summary judgment in FHFA’s favor. Id. at 5.

Plaintiff then filed a motion seeking attorneys’ fees under 5

U.S.C.§ 552(a)(4)(E), which provides that in a FOIA action, the court

“may assess against the United States reasonable attorney fees and

other litigation costs reasonably incurred in any case under this section

in which the complainant has substantially prevailed.” CR 24. The

district court denied plaintiff’s motion, holding that plaintiff was not

entitled to such fees. CR 27. This appeal followed.


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STANDARD OF REVIEW

This Court reviews the district court’s decision denying plaintiff’s

motion for attorneys’ fees for abuse of discretion. Brayton v. Office of

the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011).

SUMMARY OF ARGUMENT

In order to be awarded fees in a FOIA case, a plaintiff must

demonstrate both that he is “eligible” and “entitled” to fees. To be

“eligible” for fees, a plaintiff must establish that he “substantially

prevailed” in this litigation. Here, the district court twice denied

plaintiff’s motions for relief on the merits and eventually granted

summary judgment in favor of the government. Assuming arguendo

that plaintiff surpassed the eligibility threshold, he still is not entitled

to fees because the four-factor test for “entitlement” strongly counsels

against the award of fees in this case.

In determining entitlement to fees, a court must consider: (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)

whether the government has a reasonable basis for withholding the


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requested information. The district court did not abuse its discretion in

finding that plaintiff is not entitled to fees in this case.

The public benefit derived from the meager disclosure in this case

does not favor the award of fees. The bare bones factual information

disclosed here does not add in any meaningful way to the fund of

information publicly available concerning the government’s decision to

place Fannie Mae and Freddie Mac into conservatorship. The few pages

released simply describe the contents of a federal statute and general

characteristics of a consent order or conservatorship, which is public

information readily available in law libraries and from multiple other

sources.

The second and third factors - - plaintiff’s commercial benefit and

nature of plaintiff’s interest in the information do not advance plaintiff’s

cause. Plaintiff concedes that he formerly worked for the federal

government and now works as a consultant, legal advisor, and

regulatory policy expert. Plaintiff plainly has a commercial interest in

the information requested in this case so as to provide a “private

incentive” to seek disclosure without government funding.


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The final factor asks the court to consider whether the

government had a reasonable or colorable basis for withholding

documents and, most critically, whether the government was

recalcitrant or obdurate in opposing a valid claim. The government’s

response to this lawsuit was reasonable and hardly can be characterized

as “obdurate.” Indeed, plaintiff concedes that he “does not dispute that

FHFA had a colorable or reasonable basis for withholding information.”

Plaintiff’s Opening Brief (“Pl. Br.”) at 18-19 (emphasis added).

Even if the Court were to conclude that plaintiff is entitled to

attorneys’ fees, which he is not, plaintiff is not entitled to the

$15,000.00 requested. “A plaintiff’s overall success on the merits also

must be considered in determining the reasonableness of a fee award.”

Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363, 369 (D.C.

Cir. 2006). The overall history of this litigation, and its meager results,

should be taken into account in reaching the conclusion that any award

of fees here would not be reasonable under the circumstances.


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ARGUMENT

Introduction

The FOIA permits a court to assess attorneys’ fees and other

litigation costs where a plaintiff has “substantially prevailed.” See 5

U.S.C. § 552(a)(4)(E)(i) (“[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”).

An award of fees and costs “was not enacted to provide a reward for any

litigant who successfully forces the government to disclose information

it wished to withhold.” Nationwide Bldg. Maint., Inc. v. Sampson, 559

F.2d 704, 711 (D.C. Cir. 1977). Rather, the provision “had a more

limited purpose to remove the incentive for administrative resistance to

disclosure requests based not on the merits of exemption claims, but on

the knowledge that many FOIA plaintiffs do not have the financial

resources or economic incentives to pursue their requests through

expensive litigation.” Id.

A plaintiff seeking fees must satisfy both parts of a two-part test

and demonstrate that he is first eligible to receive fees and second that

he is entitled to do so. See Brayton v. Office of U.S. Trade


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Representative, 641 F.3d 521, 524 (D.C. Cir.2011). “The eligibility prong

asks whether a plaintiff has ‘substantially prevailed’ and thus ‘may’

receive fees. If so, the court proceeds to the entitlement prong and

considers a variety of factors to determine whether plaintiff should

receive fees.” Id. (emphasis in original).

The second of the two-part test, whether plaintiff is entitled to

fees, is based on four, non-exhaustive factors including: the public

benefit derived from the case, the commercial benefit to the plaintiff,

the nature of plaintiff’s interest in the records, and whether the

government has a reasonable basis for withholding the requested

information. See Cotton v. Heyman, 63 F.3d 1115, 1117 (D.C. Cir.

1995). Further, a plaintiff's overall success on the merits also must be

considered in determining the reasonableness of a fee award. See

Farrar v. Hobby, 506 U.S. 103, 114 (1992). In this action, the district

court did not abuse its discretion in holding that these factors counsel

against an award of fees.

I. PLAINTIFF’S ELIGIBILITY FOR ATTORNEYS’ FEES.

In order to be “eligible” for attorneys’ fees, plaintiff must establish

that he “substantially prevailed” in this litigation. The district court


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acknowledged that the government “turn[ed] over * * * pages (or

sections of documents) pursuant to a court order,” but the court stated

that it has “serious doubts as to whether this amounts to “substantially

prevailing.” JA 37. It is not difficult to see why the district court had

such doubts since the court twice denied plaintiff’s motions for relief on

the merits and eventually granted summary judgment in favor of the

government. First, the court denied plaintiff’s motion for summary

judgment and held that the requested documents were protected by the

deliberative process privilege. CR 15. Second, after the court had

ordered the government to conduct a segregability analysis and release

segregable, factual material, plaintiff challenged the government’s

analysis, but the district court, after conducting a second in camera

review, upheld the government’s actions and granted summary

judgment in the government’s favor. CR 21 at 4-5.

Plaintiff seeks to snatch victory from two defeats in the court

below by arguing that he “substantially prevailed” because the court

ordered FHFA to identify and disclose any portions of the requested

documents that are reasonably segregable from material that is

protected by the deliberative process privilege. See Plaintiff’s Opening


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Brief (“Pl. Br.”) at 13. This resulted in the disclosure of scant factual

material. See CR 18-1. Plaintiff maintains that his overall substantial

lack of success is irrelevant in determining whether he “substantially

prevailed” in this litigation. See Pl. Br. at 12-13. Instead, plaintiff

contends that “to be eligible for an award of attorneys’ fees, a FOIA

requester need only show that he obtained some “court-ordered relief,”

regardless of how insubstantial it might be. Id.

Given the meager relief granted plaintiff in this case, the district

court was right in being “doubtful” whether plaintiff had “substantially

prevailed.” In Mobley v. DHS, No. 11-2074, 2012 WL 6103000 (D.D.C.

Dec. 10, 2012), the court recently emphasized that “[a] FOIA case must

be viewed in its totality in determining whether a plaintiff has

‘substantially prevailed.’” Id. at *5. The Mobley court concluded, “if a

plaintiff obtains only one small piece of the relief it seeks in its

complaint, as the plaintiffs did here, calling such prevalence

‘substantial’ is clearly incorrect. To give meaning to the language used

in the statute, a FOIA plaintiff must obtain the essential elements of

the relief that it seeks in its complaint in order to substantially prevail,

which the plaintiffs did not do here.” Id. See Union of Concerned


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Scientists v. NRC, 824 F.2d 1219, 1226 (D.C. Cir. 1987) (in determining

eligibility for fees, “[a] court must assess both the substance and quality

of the information released”); Pac Energy Inst. v. IRS, No. 94-36172,

1996 WL 14244, at * 1 (9th Cir. Jan. 16, 1996) (plaintiff did not

“substantially prevail” because it “obtained only five of 80 documents it

sought, and none that was particularly noteworthy).

However, even assuming arguendo that plaintiff satisfied the

threshold for eligibility, this does not end the inquiry. Plaintiff must

also satisfy the second part of the fees’ test and demonstrate that he is

entitled to fees. As the district court correctly held, and as we discuss

further below, plaintiff has failed to meet this test.

Moreover, a plaintiff's overall success on the merits also must be

considered in determining the reasonableness of a fee award. See

Farrar v. Hobby, 506 U.S. 103, 114 (1992 (“‘the most critical factor’ in

determining the reasonableness of a fee award ‘is the degree of success

obtained’”) (citation omitted). See also Tex. State Teachers Ass'n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989). Plaintiff’s

relatively meager success here should be considered and weighed

against him in the overall fee analysis.


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II. PLAINTIFF IS NOT ENTITLED TO ATTORNEYS’ FEES.

Plaintiff failed to satisfy the second part of the fees’ test and,

therefore, he is not entitled to fees in this case. As discussed above, in

order to make such a determination, the court must consider: “(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)

whether the government has a reasonable basis for withholding the

requested information.” See Cotton, 63 F.3d at 1117. The Court

reviews the district court’s fee entitlement determination for abuse of

discretion. See Davy v. CIA, 456 F.3d 162, 167 (D.C. Cir. 2006). The

district court did not abuse its discretion in finding that plaintiff is not

entitled to fees in this case.

A, The Limited Factual Information Produced in This Litigation Did Not Benefit the Public.

While any response to a FOIA request could theoretically benefit

the public by vaguely adding to the public’s knowledge about the

operation of government in some minor or technical way, such a broad

definition of “public benefit” is not what Congress had it mind when it

included this factor in the statutory definition. See Fenster v. Brown,

617 F.2d 740, 744 (D.C. Cir. 1979). Rather, the “public benefit” factor


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should only weigh in favor of an award where “complainant’s victory is

likely to add to the fund of information that citizens may use in making

vital political choices.” Cotton, 63 F.3d at 1120. In making this

determination, a court should consider whether the information is

already publicly available. Id.

The bare bones factual information disclosed here does not add in

any meaningful way to the fund of information publicly available

concerning the government’s decision to place Fannie Mae and Freddie

Mac into conservatorship. The few pages released here simply describe

the contents of a federal statute and general characteristics of a consent

order or conservatorship, which is public information readily available

in law libraries and from multiple other sources. See CR 18-1; see also

12 U.S.C. § 4517.

Plaintiff expounds at length why the general subject matter of his

request, i.e., the government’s decision to place the entities at issue in

conservatorship, is a matter of public interest. See Pl. Br. at 4-6.

Interestingly enough, nowhere in this section does plaintiff cite to the

disclosed factual material itself as a source of information regarding

that subject. Likewise, plaintiff’s references to his discussion of the


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government’s consideration of conservatorship or receivership options,

both on television and in print media, apparently were derived from

public sources other than the scant information obtained in this case.

See Pl. Br. at 3-4. For example, plaintiff’s comments on MSNBC

explicitly discuss documents obtained separate and apart from this

litigation. See http://www.youtube.com/watch?v=nyYkci_tLAg at 7:12-

7:28. Likewise, the Wall Street Journal article referenced by plaintiff,

cites no FHFA documents, but instead a book written by Andrew Ross

Sorkin, Too Big to Fail, as the source for facts surrounding the

government’s decision to enter into a conservatorship of Fannie Mae

and Freddie Mac. However, it is settled that, in assessing the public

benefit derived from the case, the Court “evaluate[s] the specific

documents at issue in the case at hand.” Cotton, 63 F.3d at 1120

(emphasis added). See Horsehead Indus. Inc. v. EPA, 999 F.Supp. 59,

68 (D.D.C.1998) (“it is the benefit that derives from the litigation, not

simply the request that is considered”).

Plaintiff gives short shrift to the actual issue before the Court - -

how the specific documents released here adds to the publicly available

information regarding the decision to place Fannie Mae and Freddie


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Mac into conservatorship. Plaintiff points to a few nebulous facts made

public by the disclosed material, including, not surprisingly, that the

government “conduct[ed] an analysis” before entering into a

conservatorship and that, in deciding to enter into a conservatorship,

FHFA took into account “public perception,’ as well as “policy,

operational, and logistical considerations.” See Pl. Br. at 7-8. These

revelations are not particularly enlightening and not “likely to add to

the fund of information that citizens may use in making vital political

choices.” See Cotton, 63 F.3d at 1120. The district court reasonably

found that “plaintiff has failed to explain how the minimal information

derived assists the decision making of the public in any meaningful

way.” JA 37. The court went on to state that it was “not persuaded

that the scant material made publicly available pursuant to this multi-

year FOIA litigation yielded any discernible public benefit.” Id. The

district court did not abuse its discretion in reaching this conclusion

which is consistent with settled law. See Fenster, 617 F.2d at 744

(disclosure of the Defense Contract Audit Manual was not of sufficient

public benefit to warrant an award of fees; Tax Analysts v. Dept. of

Justice, 965 F.2d 1092, 1097 (D.C. Cir. 1992)) (holding that disclosures


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of tax decisions did not provide sufficient public benefit to justify an

award of fees); Klamath Water Users Protective Ass'n v. U.S.

Department of the Interior, 18 Fed.Appx. 473, 475 (9th Cir. 2001)

(disclosure of communications by Bureau of Indian Affairs concerning

water allocation plan has “marginal public interest and little relevance

to the making of political choices by citizens”). In short, plaintiff failed

to satisfy the important public benefit factor of the entitlement test.

B. Plaintiff’s Limited Interest in Publicly Disseminating the Requested Information Does Not Weigh in his Favor. Considering the remaining factors in the entitlement test does not

advance plaintiff’s cause. The second and third factors - - plaintiff’s

commercial benefit and nature of plaintiff’s interest in the information -

- are closely related and “often considered together” and assess whether

a plaintiff “has sufficient private incentive to seek disclosure” without

attorneys’ fees. See Davy v. C.I.A., 550 F.3d 1155, 1160 (D.C. Cir. 2008).

Plaintiff concedes that he formerly worked for the federal

government and now works as a consultant, legal advisor, and

regulatory policy expert. Plaintiff also acknowledges that he “works

closely with Judicial Watch,” in litigating FOIA lawsuits. See Pl. Br. at

3-4. Thus, plaintiff plainly has a commercial interest in the information


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requested in this case so as to provide a “private incentive” to seek

disclosure without the government financing his litigation.

Plaintiff analogizes his interest to the plaintiff in Davy, who was

interested in private gain associated with writing a book, but in the

course of doing so, also had an interest in disseminating information to

the public. Unlike the plaintiff in Davy who was “like a journalist” who

“uses [his] editorial skills to turn the raw materials into a distinct work

and distributes that work to an audience” (see 550 F.3d at 1161-62),

plaintiff here, who is neither a journalist nor a non-profit organization,

made an indiscriminate internet posting of all pleadings in this case on

his own web site. Plaintiff provided no analysis or specific references to

the contents of the documents or why they were significant to the

public’s understanding of the government’s decision to place the

enterprises into conservatorship.

In short, plaintiff had a commercial interest in the information

requested and a “private incentive” to seek the records. Thus, these

factors should not favor plaintiff. At a minimum, these factors should

not be given any weight in advancing plaintiff’s cause, as the district

court concluded. See JA 38 (“the court finds that these factors, on their


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own, neither strongly support an award of fees and costs nor counsel

against it. * * * when viewed in relation to the lack of a quantifiable

public benefit, the factors do little to advance plaintiff’s position”).

C. The “Reasonableness” Factor Does Not Support Plaintiff’s Claim of Entitlement. The final factor asks the court to consider whether the

government had a reasonable or colorable basis for withholding

documents and, most critically, whether the government was

recalcitrant or obdurate in opposing a valid claim. See Davy, 550 F.3d

at 1162. There must be some unreasonable action taken by the

government in responding to plaintiff’s request; otherwise, plaintiff has

not satisfied “th[is] fourth element * * * [which] may foreclose a claim

for attorney’s fees or costs.” See, e.g., Maydak v. U.S. Dep’t of Justice,

579 F. Supp. 2d 105, 108-09 (D.D.C. 2008) (“[a]lthough the plaintiff

obtained two orders compelling the release of BOP records, the BOP

rightly asserts that the orders resulted from its inability to satisfy its

evidentiary burden with respect to reasonably asserted exemptions,

rather than from evidence of agency recalcitrance or bad faith”). See

also Beltranena v. U.S. Dep’t of State, No. 09-cv-01457, 2011 WL

5022789 at *11 (D.D.C. Oct. 21, 2011) (where the agency has “performed


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adequate searches for [responsive] documents,” “properly applied

exemptions,” and “presented evidence of carefully conducted

segregabilty analysis,” an award of attorneys’ fees is “inappropriate”);

Mobley, 2011 WL 6257183 at *5 (where the agency has “relied on

reasonable legal interpretations” and “acted reasonably throughout this

case,” this factor should weigh in the government’s favor).

In considering this factor, the government “need only have ‘a

colorable basis in law’ for the court to consider the ‘reasonable basis in

law’ factor in determining a FOIA plaintiff's entitlement to attorney's

fees.” Chesapeake Bay Found. v. Dept. of Agriculture, 11 F.3d 211, 216

(D. C. Cir. 1993) (quoting Nationwide Bldg. Maintenance, 559 F.2d at

712 n. 34). See also Cuneo v. Rumsfeld, 553 F.2d 1360, 1366

(D.C.Cir.1977) (“[w]hat is required is a showing that the government

had a reasonable basis in law for [its position] and that it had not been

recalcitrant in its opposition to a valid claim or otherwise engaged in

obdurate behavior.”). The government’s response to this lawsuit was

reasonable and hardly can be characterized as “obdurate.”

The FHFA responded to plaintiff’s revised FOIA request within a

month, performed adequate searches for responsive documents which


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plaintiff did not challenge, and reasonably withheld all three responsive

documents under Exemption 5. This was not a case where defendant

sought to procrastinate or to resist disclosure based on a meritless

exemption claim. See Nationwide Bldg Maint., Inc., 559 F.2d at 711.

The government had a reasonable or colorable basis for

withholding the two contested documents as protected by the

deliberative process privilege and attorney work product doctrine.

Although the attorney work product claim was not ultimately upheld,

the district court itself acknowledged that “the assertion of the work

product privilege was not wholly untenable given the documents’

mention of the possibility for future litigation.” JA 38. The court went

on to emphasize that “[w]hile this justification was not ultimately found

to be the determinative force behind the creation of the documents, it

was not unreasonable to assert the privilege as a basis for withholding

the information.” Id. at 38-39.

Moreover, with the exception of scant factual material, the court

upheld the government’s deliberative process privilege claim. And the

court further confirmed the reasonableness of the government’s

segregability analysis and, ultimately, granted summary judgment in


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favor of the government. Given the history of this litigation, there is no

question but that the government’s position was colorable and did not

come close to the kind of obdurate posturing that would warrant

consideration of this factor in plaintiff’s favor. Quite the contrary, the

government’s reasonable, and to the large extent, successful position in

this case, requires that this factor favor the government and be added to

the list of factors mandating that plaintiff be denied fees in this case.

Indeed, it is noteworthy that plaintiff concedes that he “does not

dispute that FHFA had a colorable or reasonable basis for withholding

information.” Pl. Br. at 18-19 (emphasis added). Plaintiff merely

objects that the district court “erroneously gave the fourth factor too

much weigh in its analysis.” Id. at 19. This is incorrect. The court

rightly considered all four factors and concluded that the first and

fourth factors weighed against the award of fees, while the closely-

related second and third factors, while neither strongly supporting nor

counseling against an award, did little to advance plaintiff’s cause. The

court performed its analysis of the four factors properly and rightly

concluded that plaintiff was not entitled to fees under the four-part test.


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III. PLAINTIFF’S REQUEST FOR $15,852.50 IN ATTORNEYS’ FEES AND COSTS IS UNREASONABLE AND EXCESSIVE.

Even if the Court were to conclude that plaintiff is entitled to

attorneys’ fees, which he is not, plaintiff is not entitled to the

$15,852.50 requested. The degree of plaintiff’s success is the “‘most

critical factor’ in determining the reasonableness of a fee award.”

Farrar, 506 U.S. at 114 (citation omitted) ; see also Judicial Watch, Inc.

v. U.S. Dep’t of Commerce, 470 F.3d 363, 369 (D.C. Cir. 2006) (“[a]

plaintiff’s overall success on the merits also must be considered in

determining the reasonableness of a fee award.”).

We discussed at length above that plaintiff’s success in this case

was extremely limited and the government ultimately prevailed. The

overall history of this litigation, and its meager results, should be taken

into account in reaching the conclusion that any award of fees here

would not be reasonable under the circumstances.

At a minimum, plaintiff’s limited results should be accounted for

in the calculation of any fees awarded. It would be unreasonable to

finance plaintiff’s entire litigation here for the bare factual material,

primarily summarizing publically-available facts, he received. This


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Court has emphasized that “[f]ees are not recoverable for nonproductive

time nor * * * for time expended on issues on which plaintiff did not

ultimately prevail.” Nat’l Ass’n of Concerned Veterans v. U.S. Secretary

of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). “The fee application

should therefore indicate whether nonproductive time or time expended

on unsuccessful claims was excluded and, if time was excluded, the

nature of the work and the number of hours involved should be stated.”

Id. at 1327-28. Plaintiff’s fee application fails to distinguish between

his successful and unsuccessful claims, and accordingly fails to limit his

fees’ claim to those fees that may be properly allowed.

Instead, plaintiff seeks to finance his entire litigation from the

public treasury without any disallowances for his unsuccessful cross-

motion for summary judgment and the Court’s ultimate decision

granting summary judgment in favor of FHFA. Plaintiff’s motion

sought attorneys’ fees for time reviewing the draft Vaughn index prior

to deciding to file a dispositive motion; time spent drafting plaintiff’s

unsuccessful argument that the documents in question were not covered

by the deliberative-process privilege; and time spent preparing a reply


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brief asserting that same unsuccessful argument. See JA 29. Plaintiff

cannot recover fees for any of those activities.

Moreover, plaintiff did not explicitly move the court for the

segregability analysis which resulted in the release of the limited

factual material here. Instead, in his cross-motion for summary

judgment (which was denied), in describing the applicable law, plaintiff

merely recited in one paragraph boilerplate language that “all non-

exempt material [must be] segregated and disclosed. CR 11-1-5.

Subsequently, the district court sua sponte in its August 26, 2011 order

determined that the government should conduct a segregability

analysis and disclose non-exempt material. CR 17-3.

In short, the award of any fees in this case is neither reasonable

nor warranted. At most, plaintiff may be entitled to fees for $855.00 for

the hours spent drafting his complaint and $350.00 for the filing fee for

the complaint. In addition, plaintiff may be entitled to fees for the time

spent drafting the single paragraph in his summary judgment motion

describing the requisite segregability analysis, surely a de minimis

amount.


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CONCLUSION

For the foregoing reasons, the judgment of the district court

should be affirmed.

Respectfully submitted,

STUART F. DELERY

Principal Assistant Attorney General RONALD C. MACHEN JR. United States Attorney LEONARD SCHAITMAN STEVE FRANK (202) 514-4820 Attorneys, Appellate Staff Civil Division, Room 7245 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530


CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A)

I hereby certify that this brief complies with the requirements of

Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point

Century Schoolbook, a proportionally spaced font.

I further certify that this brief complies with the type-volume

limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,000 words,

excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),

according to the count of Microsoft Word.

/s/ Steve Frank STEVE FRANK


CERTIFICATE OF SERVICE

I hereby certify that on February 8, 2013, I electronically filed the

foregoing brief with the Clerk of the Court for the United States Court

of Appeals for the District of Columbia Circuit by using the appellate

CM/ECF system. I further certify that I will cause eight (8) paper

copies of this brief to be filed with the Court within two business days.

The participants in the case are registered CM/ECF users and

service will be accomplished by the appellate CM/ECF system.

/S/ STEVE FRANK STEVE FRANK


mckinley v fhfa, appellee fhfa brief, usca dc circuit

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