United States District Court, D. Colorado
WESTERN ENERGY ALLIANCE, a Colorado, non-profit organization, Plaintiff,
BUREAU OF LAND MANAGEMENT, a federal agency within the United States Department of the Interior, Defendant.
ORDER DENYING MOTION FOR ATTORNEY FEES & COSTS
ROBERT E. BLACKBURN, District Judge.
This matter is before the court on Plaintiff Western Energy Alliance's Motion for Attorney Fees and Costs [#21] filed March 4, 2014. The defendant filed a response [#22], and the plaintiff filed a reply [#23]. I deny the motion
The plaintiff, the Western Energy Alliance (WEA), filed this suit to enforce the Freedom of Information Act (FOIA). On May 2, 2013, the WEA submitted a FOIA request to the Bureau of Land Management seeking information about the peer review process used in developing the report of the BLM titled "A Report on National Greater Sage-Grouse Measures." The report was produced by the Sage-Grouse national Technical Team and is known as the NTT Report.
The BLM failed to make a timely determination concerning the FOIA request and the WEA filed this suit. About ten days after this case was filed, the BLM made an initial response to the requests of the WEA by releasing some information on October 24, 2013. Additional information was released by the BLM on December 31, 2013. After the WEA confirmed that the BLM response was adequate, the parties entered a stipulation to dismiss this case, but asked the court to retain jurisdiction over the issue of attorney fees and costs. The court entered an order [#20] to that effect. The information released by the BLM is peer review documents that were part of the basis for the NTT report. The NTT report long has been available to the public.
I. STANDARD OF REVIEW
Under 5 U.S.C. § 552(a)(4)(E)(I), a court may award attorney fees in a case involving a claim under FOIA. Anderson v. Sec'y of Health and Human Services, 80 F.3d 1500, 1504 (10th Cir. 1996). An award of attorney fees and costs is within the discretion of the district court. Aviation Data Service v. F.A.A., 687 F.2d 1319, 1321 (10th Cir. 1982). A party seeking an award has the burden of showing it is entitled to an award. Anderson, 80 F.3d at 1504.
The court first must determine if the plaintiff is eligible for an award of fees and costs. A plaintiff is eligible for an award if the plaintiff has "substantially prevailed" on the FOIA claim. § 552(a)(4)(E)(ii). A plaintiff has substantially prevailed if the plaintiff has obtained relief through either (i) a judicial order (or enforceable written agreement or consent decree); or (ii) a voluntary or unilateral change in position by the agency, where the claim of the plaintiff was not insubstantial. § 552(a)(4)(E)(ii); Anderson, 80 F.3d at 1504.
If the plaintiff is eligible, then the court must determine if an award otherwise is justified. Id. Determination of whether an award otherwise is justified involves consideration of four factors: (1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the interest of the plaintiff in the records sought; and (4) whether the withholding of the records by the government had a reasonable basis in law. Anderson, 80 F.3d at 1504.
The BLM does not contest the eligibility of WEA for an award of attorney fees and costs. However, the BLM contends that none of the four factors in the "otherwise justified" analysis supports an award of fees and costs.
The WEA is a tax-exempt organization incorporated under Internal Revenue Code section 501(c)(6) as a "business league." "A business league is an association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit." The membership of the WEA is comprised of "over 480 companies engaged in all aspects of... production of oil and natural gas in the West." Complaint [#1], ¶¶ 3-4. Its stated goal is to promote exploration and production ("E&P") of oil and natural gas through "engag[ing] in any federal regulation that affects the E&P sector, " promoting "Positive Messages About Industry, " and "Increasing Demand" for oil and gas. Response [#22], Ex. 5.
A. Public Benefit
To some degree, a successful FOIA plaintiff always acts for the benefit of the public "both by bringing government into compliance with the FOIA and by securing for the public at large the benefits assumed to flow from the public disclosure of government information." Aviation Data, 687 F.2d at 1323 (internal quotation and citation omitted). However, noting the underlying purposes of FOIA disclosure, the United States Court of Appeals for the Tenth Circuit has said the public benefit factor
does not particularly favor attorney's fees where the award would merely subsidize a matter of private concern; this factor rather speaks for an award where the complainant's victory is likely to add to the fund of ...