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The Sierra Club v. United States Environmental Protection Agency

United States District Court, N.D. California

December 8, 2014

THE SIERRA CLUB, et al., Plaintiffs,

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For The Sierra Club, Environmental Integrity Project, Plaintiffs: David A. Bahr, Eugene, OR; Elena Kathryn Saxonhouse, Kristin A. Henry, Sierra Club, San Francisco, CA United Sta; Kristin A. Henry, Sierra Club, San Francisco, CA.

For United States Environmental Protection Agency, Defendant: Abraham A. Simmons, LEAD ATTORNEY, U.S. Attorney's Office, San Francisco, CA.

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MARIA-ELENA JAMES, United States Magistrate Judge.

Re: Dkt. No. 77


Plaintiffs The Sierra Club and Environmental Integrity Project (" EIP" ) (collectively, " Plaintiffs" ) filed a complaint on February 23, 2011, against Defendant United States Environmental Protection Agency (the " EPA" ), seeking the disclosure of certain government documents under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, et seq. Compl. ¶ 1, Dkt. No. 1. After the parties completed briefing cross-motions for summary judgment in May of 2012, they entered into settlement discussions and eventually agreed to settle the case. Dkt. No. 69. Now before the Court is Plaintiffs' Petition for Attorneys' Fees and Costs. Dkt. No. 77 (" Mot." ). The EPA has filed an Opposition (Dkt. No. 90), and Plaintiffs have filed a Reply (Dkt. No. 94). The Court previously found this matter suitable for disposition without oral argument (Dkt. No. 107) and now issues the following order.


A. Initial FOIA Request

On February 25, 2010, Plaintiffs submitted a FOIA request to the EPA seeking information received by the EPA through its requests for information under Section 114 of the Clean Air Act (" CAA" ), 42 U.S.C. § 7414, regarding Luminant Generation Company, LLC's (" Luminant" ) Texas coal-fired power plants. Jt. Stmnt. ¶ 2, Dkt. No. 15; Adams Decl. ¶ 3, Dkt. No. 28. The request was submitted to the EPA via email dated February 25, 2010, and assigned the tracking number 06-FOI-00244-10. Jt. Stmnt. ¶ 2; Adams Decl. ¶ 3. It comprised over 300,000 pages of records that Luminant provided to the EPA in approximately 17 batches on a rolling basis over a one and a half year period from September 2008 to February 2010. Adams Decl. ¶ 3; Harrison Decl. ¶ 12, Dkt. No. 45-1; Second Harrison Decl. ¶ 5, Dkt. No. 91. By letter dated March 23, 2010, the EPA informed Plaintiffs that an extension to FOIA's 20-business day decision deadline[1] was required due to " the need to search for, collect and appropriately examine a voluminous amount of separate and distinct records involved in [Plaintiffs'] request." Jt. Stmnt. ¶ 2. The EPA letter extended its decision deadline to April 9, 2010.[2] Id.

A substantial portion of the information submitted by Luminant was marked as confidential business information (" CBI" ). Adams Decl. ¶ 3; Second Harrison Decl.

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¶ 6. As such, the documents required special handling under EPA FOIA regulations. See 40 C.F.R. § 2.204(d)(1); Adams Decl. ¶ ¶ 3-4. As part of making a confidentiality determination, the EPA is first required to provide notice to each affected business that it is in the process of determining whether the information is entitled to confidential treatment and provide the business an opportunity to submit comments to support the CBI claims. Second Harrison Decl. ¶ 7. Accordingly, on April 7, 2010, the EPA initially delivered responsive documents that were not marked as CBI, along with a letter that, among other things, informed Plaintiffs that (1) certain responsive records may be entitled to confidential treatment, (2) further inquiry by the EPA was required before a final determination could be made regarding the releasability of additional documents, (3) the EPA would consult with Luminant regarding the CBI claims, and (4) the Office of Regional Counsel would issue a final confidentiality determination. Adams Decl. ¶ 4; Jt. Stmnt. ¶ 2. Pursuant to its regulations under 40 C.F.R. § 2.204(d)(1)(ii), the EPA is required to initially deny the FOIA request until a final confidentiality determination has been issued. Adams Decl. ¶ 4; Harrison Decl. ¶ 6.

On May 7, 2010, Plaintiffs timely appealed, via email, the adverse action embodied by the EPA's " initial denial" letter. Jt. Stmnt. ¶ 2. By letter dated June 8, 2010, the EPA denied this administrative appeal because EPA Region 6 Office of Regional Counsel was still in the process of completing its confidentiality determination on the approximately 300,000 pages of records. Id.; Second Harrison Decl. ¶ 6. Plaintiffs attempted, via a number of communications with the EPA, to discern when it intended to make a final determination on the continuing withholding of approximately 350,000 pages of information responsive to their FOIA request, but EPA did not provide " an estimated date on which the agency will complete action on the request," as required by FOIA, 5 U.S.C. § 552(a)(7)(B). Jt. Stmnt. ¶ 2.

Meanwhile, pursuant to 40 C.F.R. § 2.204(d)(1) and (e), the EPA provided Luminant the opportunity to substantiate its confidentiality claims on over 300,000 pages of records. The EPA's letters to Luminant of notice of opportunity to submit substantiation of its CBI claims were dated June 25, 2010 and November 8, 2010. Adams Decl. ¶ 6. Luminant was given 15 working days from receipt of the EPA's requests for substantiation, respectively, to provide its support for the CBI claims on the approximately 300,000 pages of records. Second Harrison Decl. ¶ 8. Luminant provided seven substantiation responses, totaling approximately 1,881 pages: (1) for the June 25 request for substantiation, it provided responses for July 21, July 26, September 3, October 29, and December 10, 2010; and (2) for the November 8 request, it provided responses for December 10 and 21, 2010. Second Harrison Decl. ¶ 8; Second Adams Decl. ¶ 6, Dkt. No. 92.

B. Second FOIA Request

On May 19, 2010, after the administrative appeal, the EPA received a separate FOIA request from attorney David Bahr on behalf of the Sierra Club for all communications between the EPA and Luminant regarding the initial February 25, 2010 request for documents. Lane Decl. ¶ 5, Dkt. No. 27. The request was assigned tracking number 06-FOI-00342-10. Id. On June 11, 2010, the EPA provided notice to the Sierra Club in accordance with 40 C.F.R. § 2.104(a), that it had no responsive records. Id. ¶ 7. The EPA's request for substantiation to Luminant was still in draft form during the pendency of the Sierra Club's request and had not yet been sent to Luminant. Second Adams Decl. ¶ 4. There is no indication that the Sierra Club appealed the EPA's June 11, 2010

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response, and Plaintiffs' Complaint does not address the Sierra Club's request. Id.

C. Procedural Background

On February 23, 2011, Plaintiffs filed this action pursuant to FOIA and the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701, et. seq. Compl. ¶ 1. In addition to disclosure of documents, Plaintiffs sought declarations from the Court that: (1) the failure to disclose documents was unlawful under FOIA; (2) the EPA's determinations regarding which documents would be disclosed were untimely; (3) the EPA's determinations regarding appeal were untimely; (4) the EPA's actions constituted unlawful withholding and unreasonable delay pursuant to the APA; and (5) the EPA's decisions were arbitrary, capricious an abuse of discretion, and not in accordance with the law in violation of the APA. Id. at 14. Plaintiffs filed their Complaint two months after the EPA received its last substantiation response from Luminant on December 21, 2010. Second Harrison Decl. ¶ 10. The EPA maintains that it " was still evaluating and preparing the claim-withdrawn pages of information for release, while also continuing to review the seven substantiation responses and the over 250,000 pages of records still claimed as CBI." Id.

Upon filing of the Complaint, the parties agreed to explore settlement via the Court's mediation program. Dkt. No. 20. As part of their stipulation, the parties agreed that the EPA would release all documents responsive to Plaintiffs' FOIA request for which the Luminant corporation had withdrawn its exemption claims by July 6, 2011, and the EPA agreed to disclose non-CBI documents at the rate of 1,600 pages per month. Id. at 2. During this time, Luminant withdrew its confidentiality claims on certain released pages, and the EPA was able to produce five additional disclosures during the pendency of this lawsuit. Second Harrison Decl. ¶ ¶ 11-12. In sum, over 44,000 pages of responsive documents were released pursuant to the initial FOIA request. Adams Decl. ¶ 9; Bahr Decl. ¶ 28, Dkt. No. 78. The parties were unable to resolve their dispute regarding the remaining approximately 300,000 pages of documents; thus the Court set a summary judgment briefing and hearing schedule. Order dated Nov. 21, 2011, Dkt. No. 23.

After summary judgment was fully briefed, the undersigned vacated oral argument and ordered the parties into her Chambers to meet and confer. Order dated May 15, 2012, Dkt. No. 50. From this second round of settlement discussions, the EPA agreed to timely process a revised FOIA request that targeted information in the EPA's possession at that time and which was the type of information Plaintiffs had been seeking in their original request. Saxonhouse Decl. ¶ 17, Dkt. No. 79. Pursuant to the parties' Settlement Agreement and Release, they agreed to the following: (1) the EPA would cease work on FOIA Request 06-FOI-00244-10 as the request was withdrawn; (2) Plaintiffs would narrow and submit a new FOIA request; (3) after Plaintiffs submitted a new request, the EPA would process the request consistent with its regulations under 40 C.F.R. part 2, subpart B, and within 140 days of receiving the new FOIA request; (4) Plaintiffs would dismiss this action; and (5) Plaintiffs released the EPA from liability for claims related to the litigation. Settlement Agreement, Dkt. No. 69.

In response to the revised request, the EPA released 61 of the 65 documents it identified as responsive and non-exempt under FOIA.[3] Bahr Decl. ¶ 30. Plaintiffs

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therefore stipulated to the dismissal of this case, and the Court so ordered on March 3, 2014. Stipulated Dismissal and Order, Dkt. No. 72.

Plaintiffs filed the present motion for attorneys' fees and costs on June 9, 2014. Dkt. No. 77. In their motion, Plaintiffs maintain that they have prevailed in this action " because their suit caused the release of over 44,000 pages of records responsive to their [FOIA] request." Mot. at 1. Plaintiffs further argue that their " agreement to dismiss their case while over 300,000 pages of additional information remained to be processed by [the EPA] was expressly conditioned on the Agency's settlement promise to swiftly complete the processing of a second FOIA request by a date certain, an obligation Defendant satisfied," and that " [t]hese events would not have occurred without the filing of this action and they materially benefitted the Plaintiffs' and the public's oversight of EPA's . . . regulatory and enforcement programs." Id. They seek $187,906.06 in attorneys' fees and costs. Bahr Sec. Suppl. Decl. ¶ 9, Dkt. No 108.


The fee-shifting provision of FOIA states that a " 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." 5 U.S.C. § 552(a)(4)(E). " Substantially prevailed" in this context means that a " complainant has obtained relief through either . . . a judicial order, or an enforceable written agreement or consent decree; or . . . a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." Id. Fee and cost awards are not automatically awarded to a prevailing party under FOIA. See Church of Scientology of Cal. v. U.S. Postal Serv., 700 F.2d 486, 489 (9th Cir. 1983). Rather, plaintiffs " must present convincing evidence" that they are both eligible for an award of attorney's fees and that they are entitled to such an award. Id. at 489, 492; see also Long v. United States IRS, 932 F.2d 1309, 1313 (9th Cir. 1991) (" In order to receive an award of fees, a prevailing party in a FOIA action must demonstrate both eligibility for and entitlement to such a recovery." ).

The Ninth Circuit has crafted a two-step process for determining whether a party may be awarded fees and costs under 5 U.S.C. § 552(a)(4)(E). To be eligible for an award, a party must show both that " (1) the filing of the action could reasonably have been regarded as necessary to obtain the information," and that " (2) the filing of the action had a substantial causative effect on the delivery of the information." Church of Scientology, 700 F.2d at 489 (emphasis in original).

Once a court deems a party eligible to recover fees and costs, it then exercises its " discretion to determine whether the plaintiff is entitled to fees." Or. Natural Desert Ass'n v. Locke, 572 F.3d 610, 614 (9th Cir. 2009) (emphasis added). Entitlement to an award of fees under FOIA is a separate analysis; a " determination of eligibility does not automatically entitle the plaintiff to attorney's fees." Church of Scientology, 700 F.2d at 489.

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If a court determines that a party is both eligible and entitled to receive fees, that party " must submit his fee bill to the court for its scrutiny of the reasonableness of (a) the number of hours expended and (b) the hourly fee claimed." Long, 932 F.2d at 1313-14. If these two figures are reasonable in light of the difficulty of the case and the skill of the attorneys involved, there is a " strong presumption" that their product " represents a reasonable award." Id. at 1314. A court may revise upward or downward the resulting " lodestar figure" if " factors relating to the nature and difficulty of the case overcome this strong presumption and indicate that such an adjustment is necessary." Id.[4] However, once a party is deemed both eligible and entitled to fees, " the award must be given and the only room for discretion concerns the reasonableness of the amount requested." [5] Id. A district court awarding fees and costs " should provide a detailed account of how it arrive[d] at appropriate figures for the number of hours reasonably expended and a reasonable hourly rate." Id.


A. Standing

As a preliminary matter, the EPA raises for the first time in its Opposition the issue of Sierra Club's standing to bring this case. Specifically, the EPA argues that Sierra Club lacks standing because it was not a requesting party to the initial FOIA request (06-FOI-00244-10). Opp'n at 19. The EPA notes that Sierra Club made a separate FOIA request (06-FOI-00342-10) on May 19, 2010, and argues that Sierra Club is therefore not entitled to attorneys' fees and costs related to the initial February 25, 2010, FOIA request. Id.

In response, Plaintiffs assert that the EPA acknowledged Sierra Club as a proper party to this lawsuit by: (1) submitting to personal jurisdiction of this Court based on Sierra Club's location in San Francisco; (2) admitting in its Answer that Plaintiffs had timely appealed the EPA's initial denial letter; (3) admitting that Plaintiffs had exhausted all administrative remedies required by FOIA; (4) receiving communications regarding the FOIA request from Plaintiffs' attorney, Ilan Levin, on behalf

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of the Sierra Club and EIP; (5) providing responsive information regarding the initial FOIA request directly to Sierra Club; and (6) explicitly naming Sierra Club as a party to the request in its denial letter. Reply at 10-11.

1. Legal Standard

Standing is required in order to confer subject matter jurisdiction upon federal courts under Article III of the Constitution. It is " the threshold question in every federal case." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The Supreme Court has stated that the standing requirement limits federal court jurisdiction to actual controversies so that the judicial process is not transformed into " a vehicle for the vindication of the value interests of concerned bystanders." Valley Forge Christian College v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). To satisfy the standing requirements imposed by the Constitution, a plaintiff must show that (1) it has suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the defendant; and (3) it is likely to be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

Under FOIA, a party is deemed to have suffered an injury when the government agency fails to respond to a FOIA request in a timely manner. Gilmore v. United States DOE, 33 F.Supp.2d 1184, 1189 (N.D. Cal. 1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Thus, any person who submits a FOIA request has standing to bring a FOIA challenge in federal court if the request is denied in whole or part. United States v. Richardson, 418 U.S. 166, 204, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). However, a party must be adequately identified in the FOIA request to have standing. Barragan v. Bd. of Governors of Fed. Reserve Sys., 2012 WL 1535820, at *2 (C.D. Cal. Apr. 30, 2012) (quoting Three Forks Ranch Corp. v. Bureau of Land Mgmt., Little Snake Field Office, 358 F.Supp.2d 1, 3 (D.D.C. 2005)). " The identity of the requester is required under FOIA so that the government has notice of the party or parties seeking the information." Menasha Corp. v. U.S. Dep't of Justice, 2012 WL 1034933, at *3 (E.D. Wis. Mar. 26, 2012).

2. Application to the Case at Bar

Although Sierra Club was not named in the initial request, the Court finds that the correspondence between the EPA and Plaintiffs, and the EPA's subsequent actions in this case, sufficiently identify Sierra Club as an interested party to the initial FOIA request (06-FOI-00244-10).

In Menasha, an attorney submitted a FOIA request to the Department of Justice (" DOJ" ) seeking documents on behalf of two entities. 2012 WL 1034933, at *1. However, the attorney failed to mention that the documents were being submitted on behalf of any particular entity and instead listed himself as the sole requestor. Id. After the court ordered the documents released, the plaintiffs sought attorneys' fees. Id. at *2. The DOJ opposed the fee petition, arguing that the plaintiffs lacked standing to bring the claim because neither was mentioned in the FOIA request. Id. at *3. The court disagreed and looked to the correspondence between the parties to determine whether the ...

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