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4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 KATHERINE HONOR RICH, CASE NO. C20-0813JLR 11 Plaintiff, ORDER DENYING MOTION v. FOR ATTORNEY FEES 12 UNITED STATES CITIZENSHIP 13 AND IMMIGRATION SERVICES, 14 Defendant. 15 I. INTRODUCTION 16 Before the court is Plaintiff Katherine Honor Rich’s motion for attorney fees. 17 (Mot. (Dkt. # 13).) Defendant United States Citizenship and Immigration Services 18 (“USCIS”) opposes the motion. (Resp. (Dkt. # 17.) Neither party requests oral 19 argument. (See Mot.at 1; Resp. at 1.) Having considered the parties’ submissions and 20 the applicable law, the court DENIES Ms. Rich’s motion. 21 // 22 1 II. BACKGROUND 2 Ms. Rich is an attorney who represents low-income clients in immigration matters 3 and represented G.M.O.A.1 in her naturalization application. (Compl. (Dkt. # 1) ¶¶ 9-10;
4 Rich Decl. (Dkt. # 15) ¶¶ 1-2.) USCIS issued a Notice of Intent to Deny G.M.O.A.’s 5 application based on the allegation that G.M.O.A. “had a history of unlawful presence in 6 the U.S. that would have made her permanently ineligible for residency status and that 7 this ineligibility was not disclosed to or waived by USCIS.” (Rich Decl. ¶¶ 3-4, Ex. 1.) 8 To counter that allegation, Ms. Rich filed a Freedom of Information Act (“FOIA”)
9 request on March 2, 2020, for information from G.M.O.A.’s prior interviews with 10 USCIS. (Id. ¶¶ 6-8.) 11 USCIS receives numerous FOIA requests, many from individuals who, like 12 G.M.O.A., require information from their files to advance their case. (Eggleston Decl. 13 (Dkt. # 18) ¶ 5.) USCIS processes FOIA requests on a first-in/first-out (“FIFO”) basis.
14 (Id.) USCIS received Ms. Rich’s FOIA request on or around March 2, 2020, and 15 acknowledged receipt on March 5, 2020, in a form letter that explained the FIFO system 16 and warned that “[d]ue to the increasing number of FOIA requests received by this office, 17 [there may be] some delay in processing your request.” (Id. ¶ 6, Ex. 2 at 1.) 18 At that time of Ms. Rich’s request, USCIS had around 5,822 other similar FOIA
19 requests that had been received prior to Ms. Rich’s submission. (Id. ¶ 7.) A few weeks 20 later, the COVID-19 pandemic forced USCIS FOIA operations to transition to full-time 21
1 Ms. Rich had assured her client that her name would be redacted in this matter. (Rich 22 Decl. ¶ 2.) The court honors this assurance by referring to the client through her initials only. 1 telework, which USCIS represents as “a significant and unexpected change” that 2 presented “a number of technical and logistical challenges that impacted [its] operations 3 and productivity.” (Id.)
4 Ms. Rich did not obtain a response to her FOIA request within the 20 business-day 5 period designated in 5 U.S.C. § 522(a)(6)(A)(i). (See Rich Decl. ¶ 8.) Thus, she filed the 6 instant action on May 29, 2020. (Id. ¶ 9; see Compl.) Ms. Rich twice allowed extensions 7 for USCIS to answer the complaint in hopes of reaching resolution. (Rich Decl. ¶ 10; 8 Stip. Mot. for Ext. (Dkt. # 5); 2d Stip. Mot. for Ext. (Dkt. # 7).) Eventually, Ms. Rich
9 received responsive records on August 3, 2020. (McLawsen Decl. (Dkt. # 14) ¶ 2; Rich 10 Decl. ¶ 11; see Eggleston Decl. ¶ 8.) USCIS contends that it “did not move [Ms. Rich’s 11 request] up or expedite it in the FIFO queue because of the filing of the lawsuit, nor did 12 [it] deviate from [its] normal FIFO practice.” (Eggleston Decl. ¶ 8.) Having resolved the 13 records issue, the parties now dispute the issue of fees. (See Mot.; Resp.)
14 III. ANALYSIS 15 “To obtain an award of attorney fees under the FOIA, a plaintiff must demonstrate 16 both eligibility and entitlement to the award.” Or. Nat’l Desert Ass’n v. Locke, 572 F.3d 17 610, 614 (9th Cir. 2009); see Long v. U.S. Internal Revenue Serv., 932 F.2d 1309, 1313 18 (9th Cir. 1991). The parties here disagree on both eligibility and entitlement. (See Mot.
19 at 6-13; Resp. at 5-11.) Because the court finds that Ms. Rich has not demonstrated 20 eligibility for attorney fees, the analysis ends there.2 21
2 At the outset, the parties disagree on whether information regarding settlement is 22 properly before the court. (See Resp. at 4-5.) The Ninth Circuit allows consideration of 1 Eligibility requires a plaintiff to show that he or she “has substantially prevailed” 2 in its FOIA suit by obtaining relief through either: (1) a judicial order, or an enforceable 3 written agreement or consent decree; or (2) a voluntary or unilateral change in position by
4 the agency, if the plaintiff’s claim is not insubstantial. 5 U.S.C. §§ 552(a)(4)(E)(i)-(ii); 5 First Amendment Coal. v. U.S. Dep’t of Justice, 878 F.3d 1119, 1126 (9th Cir. 2017). 6 There was no judicial order, enforceable written agreement or consent decree here. (See 7 Mot.; Resp.) Thus, only the second avenue of eligibility remains. 8 Parties pursuing this second avenue must still demonstrate “a causal nexus
9 between the litigation and the voluntary disclosure or change in position by the 10 Government.” First Amendment Coal., 878 F.3d at 1128. To do so, the plaintiff must 11 “present ‘convincing evidence’ that the filing of the action ‘had a substantial causative 12 effect on the delivery of the information.’” Id. (quoting Church of Scientology of Cal. v. 13 U.S. Postal Serv., 700 F.2d 486, 491 (9th Cir. 1983)). The Ninth Circuit lays out three
14 factors to consider when determining whether the suit had a substantial causative effect 15 on the voluntary change in position: (1) when the documents were released; (2) what 16 actually triggered the documents’ release; and (3) whether the plaintiff was entitled to the 17 documents at an earlier time. Id. at 1129 (citing Church of Scientology, 700 F.2d at 492). 18 In First Amendment Coalition, the Ninth Circuit applied these three factors to
19 conclude that the plaintiff had substantially prevailed. See id. at 1129-30. First, the 20 //
21 settlement negotiations for determining the reasonableness of attorney fees. Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011). But here, even taking into consideration the 22 settlement evidence, the court finds no demonstration of Ms. Rich’s eligibility. 1 government agency had displayed “abject resistance” throughout the entire litigation and 2 did not produce the requested documents until two and a half years after the lawsuit was 3 initiated. Id. Second, what actually triggered the documents’ release was the plaintiff’s
4 “dogged determination,” which led to a district court action that resulted in the voluntary 5 disclosure of information. Id. at 1129-30. And third, the Ninth Circuit pointed to a 6 district court error in dismissing the suit, causing the plaintiff “to endure unnecessarily 7 protracted litigation.” Id. at 1130. 8 Other courts have similarly required some showing that the lawsuit prompted the
9 voluntary production of documents. For example, in Gahagan v. U.S. Citizenship and 10 Immigration Servs., No. 14-2233, 2016 WL 3090216 (E.D. La. June 2, 2016), the court 11 found that the plaintiff had substantially prevailed when USCIS did not voluntarily turn 12 over the documents at issue until three summary judgment motions had been filed over 13 nearly a year. Id. at *1, *9. In Gahagan v. U.S. Citizenship and Immigration Servs., No.
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4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 KATHERINE HONOR RICH, CASE NO. C20-0813JLR 11 Plaintiff, ORDER DENYING MOTION v. FOR ATTORNEY FEES 12 UNITED STATES CITIZENSHIP 13 AND IMMIGRATION SERVICES, 14 Defendant. 15 I. INTRODUCTION 16 Before the court is Plaintiff Katherine Honor Rich’s motion for attorney fees. 17 (Mot. (Dkt. # 13).) Defendant United States Citizenship and Immigration Services 18 (“USCIS”) opposes the motion. (Resp. (Dkt. # 17.) Neither party requests oral 19 argument. (See Mot.at 1; Resp. at 1.) Having considered the parties’ submissions and 20 the applicable law, the court DENIES Ms. Rich’s motion. 21 // 22 1 II. BACKGROUND 2 Ms. Rich is an attorney who represents low-income clients in immigration matters 3 and represented G.M.O.A.1 in her naturalization application. (Compl. (Dkt. # 1) ¶¶ 9-10;
4 Rich Decl. (Dkt. # 15) ¶¶ 1-2.) USCIS issued a Notice of Intent to Deny G.M.O.A.’s 5 application based on the allegation that G.M.O.A. “had a history of unlawful presence in 6 the U.S. that would have made her permanently ineligible for residency status and that 7 this ineligibility was not disclosed to or waived by USCIS.” (Rich Decl. ¶¶ 3-4, Ex. 1.) 8 To counter that allegation, Ms. Rich filed a Freedom of Information Act (“FOIA”)
9 request on March 2, 2020, for information from G.M.O.A.’s prior interviews with 10 USCIS. (Id. ¶¶ 6-8.) 11 USCIS receives numerous FOIA requests, many from individuals who, like 12 G.M.O.A., require information from their files to advance their case. (Eggleston Decl. 13 (Dkt. # 18) ¶ 5.) USCIS processes FOIA requests on a first-in/first-out (“FIFO”) basis.
14 (Id.) USCIS received Ms. Rich’s FOIA request on or around March 2, 2020, and 15 acknowledged receipt on March 5, 2020, in a form letter that explained the FIFO system 16 and warned that “[d]ue to the increasing number of FOIA requests received by this office, 17 [there may be] some delay in processing your request.” (Id. ¶ 6, Ex. 2 at 1.) 18 At that time of Ms. Rich’s request, USCIS had around 5,822 other similar FOIA
19 requests that had been received prior to Ms. Rich’s submission. (Id. ¶ 7.) A few weeks 20 later, the COVID-19 pandemic forced USCIS FOIA operations to transition to full-time 21
1 Ms. Rich had assured her client that her name would be redacted in this matter. (Rich 22 Decl. ¶ 2.) The court honors this assurance by referring to the client through her initials only. 1 telework, which USCIS represents as “a significant and unexpected change” that 2 presented “a number of technical and logistical challenges that impacted [its] operations 3 and productivity.” (Id.)
4 Ms. Rich did not obtain a response to her FOIA request within the 20 business-day 5 period designated in 5 U.S.C. § 522(a)(6)(A)(i). (See Rich Decl. ¶ 8.) Thus, she filed the 6 instant action on May 29, 2020. (Id. ¶ 9; see Compl.) Ms. Rich twice allowed extensions 7 for USCIS to answer the complaint in hopes of reaching resolution. (Rich Decl. ¶ 10; 8 Stip. Mot. for Ext. (Dkt. # 5); 2d Stip. Mot. for Ext. (Dkt. # 7).) Eventually, Ms. Rich
9 received responsive records on August 3, 2020. (McLawsen Decl. (Dkt. # 14) ¶ 2; Rich 10 Decl. ¶ 11; see Eggleston Decl. ¶ 8.) USCIS contends that it “did not move [Ms. Rich’s 11 request] up or expedite it in the FIFO queue because of the filing of the lawsuit, nor did 12 [it] deviate from [its] normal FIFO practice.” (Eggleston Decl. ¶ 8.) Having resolved the 13 records issue, the parties now dispute the issue of fees. (See Mot.; Resp.)
14 III. ANALYSIS 15 “To obtain an award of attorney fees under the FOIA, a plaintiff must demonstrate 16 both eligibility and entitlement to the award.” Or. Nat’l Desert Ass’n v. Locke, 572 F.3d 17 610, 614 (9th Cir. 2009); see Long v. U.S. Internal Revenue Serv., 932 F.2d 1309, 1313 18 (9th Cir. 1991). The parties here disagree on both eligibility and entitlement. (See Mot.
19 at 6-13; Resp. at 5-11.) Because the court finds that Ms. Rich has not demonstrated 20 eligibility for attorney fees, the analysis ends there.2 21
2 At the outset, the parties disagree on whether information regarding settlement is 22 properly before the court. (See Resp. at 4-5.) The Ninth Circuit allows consideration of 1 Eligibility requires a plaintiff to show that he or she “has substantially prevailed” 2 in its FOIA suit by obtaining relief through either: (1) a judicial order, or an enforceable 3 written agreement or consent decree; or (2) a voluntary or unilateral change in position by
4 the agency, if the plaintiff’s claim is not insubstantial. 5 U.S.C. §§ 552(a)(4)(E)(i)-(ii); 5 First Amendment Coal. v. U.S. Dep’t of Justice, 878 F.3d 1119, 1126 (9th Cir. 2017). 6 There was no judicial order, enforceable written agreement or consent decree here. (See 7 Mot.; Resp.) Thus, only the second avenue of eligibility remains. 8 Parties pursuing this second avenue must still demonstrate “a causal nexus
9 between the litigation and the voluntary disclosure or change in position by the 10 Government.” First Amendment Coal., 878 F.3d at 1128. To do so, the plaintiff must 11 “present ‘convincing evidence’ that the filing of the action ‘had a substantial causative 12 effect on the delivery of the information.’” Id. (quoting Church of Scientology of Cal. v. 13 U.S. Postal Serv., 700 F.2d 486, 491 (9th Cir. 1983)). The Ninth Circuit lays out three
14 factors to consider when determining whether the suit had a substantial causative effect 15 on the voluntary change in position: (1) when the documents were released; (2) what 16 actually triggered the documents’ release; and (3) whether the plaintiff was entitled to the 17 documents at an earlier time. Id. at 1129 (citing Church of Scientology, 700 F.2d at 492). 18 In First Amendment Coalition, the Ninth Circuit applied these three factors to
19 conclude that the plaintiff had substantially prevailed. See id. at 1129-30. First, the 20 //
21 settlement negotiations for determining the reasonableness of attorney fees. Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011). But here, even taking into consideration the 22 settlement evidence, the court finds no demonstration of Ms. Rich’s eligibility. 1 government agency had displayed “abject resistance” throughout the entire litigation and 2 did not produce the requested documents until two and a half years after the lawsuit was 3 initiated. Id. Second, what actually triggered the documents’ release was the plaintiff’s
4 “dogged determination,” which led to a district court action that resulted in the voluntary 5 disclosure of information. Id. at 1129-30. And third, the Ninth Circuit pointed to a 6 district court error in dismissing the suit, causing the plaintiff “to endure unnecessarily 7 protracted litigation.” Id. at 1130. 8 Other courts have similarly required some showing that the lawsuit prompted the
9 voluntary production of documents. For example, in Gahagan v. U.S. Citizenship and 10 Immigration Servs., No. 14-2233, 2016 WL 3090216 (E.D. La. June 2, 2016), the court 11 found that the plaintiff had substantially prevailed when USCIS did not voluntarily turn 12 over the documents at issue until three summary judgment motions had been filed over 13 nearly a year. Id. at *1, *9. In Gahagan v. U.S. Citizenship and Immigration Servs., No.
14 15-796, 2016 WL 3127209 (E.D. La. June 3, 2016) (“Gahagan II”), USCIS 15 acknowledged that it conducted a supplemental search “in an effort to bring resolution to 16 this matter,” which also spanned nearly a year. Id. at *1-2. This supplemental search 17 found a responsive document, which was then voluntarily released. Id. at *2. The court 18 observed that to be convincing evidence of the required substantial causative effect. Id.
19 Unlike the above cases, Ms. Rich has not produced the convincing evidence 20 necessary to show she has substantially prevailed. First, unlike the protracted matters 21 above that spanned years and several motions, Ms. Rich’s case was resolved without 22 court intervention in only two months. See, e.g., First Amendment Coal., 878 F.3d at 1 1129; (see Compl.; Rich Decl. ¶ 11.) Second, USCIS submits evidence that what 2 actually triggered the release was the simple fact that Ms. Rich’s request had reached the 3 top of the FIFO queue in mid to late June. (Eggleston Decl. ¶ 8.) Unlike Gahagan II,
4 where the agency admitted to taking action in order to reach resolution of the suit, USCIS 5 emphasizes the exact opposite: it did nothing differently in its processing of Ms. Rich’s 6 request despite the initiation of this suit and the negotiations between attorneys on the 7 matter.3 See 2016 WL 3127209, at *2; (Eggleston Decl. ¶ 8; McLawsen Decl. ¶ 2.) And 8 third, while the court recognizes that USCIS did not process the request within the 20-day
9 statutory period, nothing caused Ms. Rich to “endure unnecessarily protracted litigation,” 10 as in First Amendment Coalition. See 878 F.3d at 1130. Ms. Rich has not presented any 11 case where a court has found eligibility on similar circumstances. 12 Ms. Rich’s only argument for eligibility is a temporal one. She contends that she 13 had not received the requested documents before the filing of this suit, and the
14 government subsequently released the records. (See Mot. at 8-9; Reply (Dkt. # 19) at 2 15 (“After her lawsuit was filed, the agency ‘changed its position.’”).) But as First 16 Amendment Coalition cautioned, “the mere fact that information sought was not released 17 until after the lawsuit was instituted is insufficient to establish that a complainant has 18 ‘substantially prevailed.’” 878 F.3d at 1128 (quoting Church of Scientology, 700 F.2d at
19 // 20 3 Indeed, First Amendment Coalition seemed to identify this scenario—where “administrative compliance with statutory production requirements” rather than the lawsuit 21 “triggered the release”—as one in which the voluntary release of information has nothing to do with the FOIA suit. 878 F.3d at 1128 (citing Van Strum v. Thomas, No. 88-4153, 1989 WL 22 90175, at *1 (9th Cir. Aug. 2, 1989)). 1 491-92) (internal quotation marks omitted). Without more, Ms. Rich has not shown that 2 she is eligible for attorney fees. 3 On these facts, the court finds that Ms. Rich’s suit did not have a substantial
4 causative effect on USCIS’s subsequent release of documents and that consequently, Ms. 5 Rich did not “substantially prevail” and is not eligible for attorney fees. Accordingly, the 6 court denies Ms. Rich’s motion. 7 IV. CONCLUSION 8 For the foregoing reasons, the court DENIES Ms. Rich’s motion for attorney fees
9 (Dkt. # 13). 10 Dated this 21st day of December, 2020. 11 A 12 13 JAMES L. ROBART United States District Judge
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