United States District Court, S.D. Georgia, Dublin Division
THOMAS W. SIKES, Plaintiff,
UNITED STATES DEPARTMENT OF THE NAVY, Defendant.
the Court in the captioned case is the matter of whether
Plaintiff Thomas W. Sikes's appellate counsel should be
awarded attorney's fees and costs under the Freedom of
Information Act ("FOIA") ., 
FOIA provides: "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." 5 U.S.C.
§ 552(a) (4) (E) (i) . A plaintiff "has
substantially prevailed if [he] has obtained relief through
... a judicial order." Id. § 552(a) (4)
(E) (ii) (I) . In this case, Plaintiff obtained relief on
appeal when the Eleventh Circuit held that the Navy could not
withhold documents responsive to his FOIA request simply
because it had previously provided the documents to Plaintiff
in response to a prior request. Thus, Plaintiff may be
eligible for an award of attorney's fees.
Eleventh Circuit, however, has directed that
[e]ven where a plaintiff substantially prevails, he will not
necessarily be entitled to attorneys' fees. Instead, the
district court must look to (1) the benefit to the public
resulting from the FOIA request; (2) the commercial benefit
to the plaintiff from the request; (3) the nature of the
plaintiff's interest in the records; [and] (4) the
reasonableness of the Government's justifications for
Chilivis v. SEC, 673 F.2d 1205, 1212 n.16
(11th Cir. 1982) (quoted and cited sources
omitted). The first three factors assist a court
in distinguishing between requesters who seek documents for
public informational purposes and those who seek documents
for private advantage. The former engage in the kind of
endeavor for which a public subsidy makes some sense, and
they typically need the fee incentive to pursue litigation;
the latter cannot deserve a subsidy as they benefit only
themselves and typically need no incentive to litigate.
Davy v. CIA, 550 F.3d 1155, 1160 (D.C. Cir. 2008).
determination of whether a party is entitled to
attorney's fees is in the discretion of the court.
Lovell v. Alderete, 630 F.2d 428, 431
(5th Cir. 1980). The burden is on Plaintiff to
demonstrate that he is entitled to attorney's fees.
Abernethy v. IRS, 909 F.Supp. 1562, 1567 (N.D.Ga.
first factor militates against an award of attorney's
fees. The public benefit factor is satisfied if "the
complainant's victory is likely to add to the fund of
information that citizens may use in making vital political
choices." Cotton v. Heyman, 63 F.3d 1115, 1120
(D.C. Cir. 1995) (quoted source omitted). The Fifth Circuit
stated that in weighing this factor, "a court should
take into account the degree of dissemination and likely
public impact that might be expected from a particular
disclosure." Blue v. Bureau of Prisons, 570
F.2d 529, 533-34 (5th Cir. 1978) . In this case,
the documents at issue, the "backseat notes," had
already been produced to Plaintiff in response to prior
litigation. Thus, there is no public interest in disclosing
information that was already in the public domain. See
Nw. Coal, for Alts, to Pesticides v. Browner, 965
F.Supp. 59, 64 (D.D.C. 1997) ("The court must also
consider the extent to which the information released is
already in the public domain."). Plaintiff argues that
his second request "vindicated the public interest in
confirming the accuracy" of the Navy's prior
production. (Reply Br., Doc. No. 73, at 2.) This
justification, however - the testing of government agency
compliance through redundant requests - does very little to
impact the public; rather, it is more likely a waste of
second and third factors, commercial benefit to the plaintiff
and nature of the plaintiff's interest in the documents,
are often considered together. Abernethy, 909
F.Supp. at 1568. In assessing these factors in relation to
Plaintiff's original request for the "backseat
notes" in Sikes I, this Court was not persuaded
one way or the other. The Court found Plaintiff's interest
in the requested documents to be of a private nature and
remarked that Plaintiff stood to benefit commercially from
disclosure through the publication of a book. (See
Order of Dec. 6, 2013, Doc. No. 43, at 38-39, in
Sikes I.) Nevertheless, "Plaintiff ha[d] also
demonstrated his 'scholarly or public-interest'
motivations in writing about Admiral Boorda, which temper[ed]
his private and commercial interests." (Id. at
39.) Here, Plaintiff has done nothing to tip the balance in
his favor with respect to these factors. Moreover, as noted,
the "backseat notes" have already been disclosed to
Plaintiff so that any public benefit to be realized from
production should have already occurred.
final factor, the reasonableness of the Navy's
withholding of the requested documents, weighs heavily
against awarding attorney's fees. To satisfy this factor,
the Navy need only have "a colorable basis in law"
for withholding the information. Davy, 550 F.3d at
1162; Abernethy, 909 F.Supp. at 1568. The Court
should also determine whether the Navy was "recalcitrant
in its opposition to a valid claim or otherwise engaged in
obdurate behavior." Davy, 550 F.3d at 1162
(internal citations and quotations omitted). In other words,
the Court must consider the "merits of an agency's
nondisclosure decision." See Brayton v. Office of
United States Trade Representative, 641 F.3d 521, 528
(D.C. Cir. 2011). The Navy advances two bases for why it
initially withheld the records. First, the Navy's
position reflected its regulations in place at the time.
See 32 C.F.R. § 701.8(n)(8) (effective through
July 31, 2018) (providing that a request should be denied if
it “is duplicative of another request which has already
been completed or currently in process from the same
requester"). Second, at least one other district court
agreed with the Navy's position. See Toensing v.
United States Dep't of Justice, 890 F.Supp.2d 121,
140 (D.D.C. 2012) (observing that “[a]gency resources
are not unlimited, and thus allowing requesters to monopolize
scarce agency resources in this way-through filing
duplicative requests where the records are static-would also
disserve the purposes of the FOIA because every minute spent
giving de novo reassessment to a duplicative request is a
minute not spent processing new requests and disclosing new,
previously undisclosed records"). Moreover, at the time
of withholding the documents, there was no precedential case
authority contrary to the Navy's position. See
Frydman v. Dep't of Justice, 852 F.Supp. 1497,
1504-05 (D. Kan. 1994). There is also the fact that this
Court agreed with the Navy's position that it need not
reproduce documents to the same requester. Finally, nothing
in the record of this case demonstrates that the Navy was
recalcitrant or obdurate. Indeed, the Navy sent a letter to
Plaintiff in response to his request that it had in fact
"again reviewed the investigative file and determined
that the records provided to [him] were complete."
(Def.'s Mot. for Summ. J., Doc. No. 44, Ex. 2, at 4
(Letter to Pl. of July 10, 2014).) After the Eleventh Circuit
determined that the letter was insufficient to comply with
its FOIA obligations, the Navy conducted another search and
reproduced responsive documents. (See generally
Order of Jan. 2, 2019, Doc. No. 61.)
balancing the factors, Plaintiff is not entitled to an award
of attorney's fees in this case. The public benefit
resulting from this case, if any at all, is very limited.
And, the Navy's conduct in withholding the documents was
reasonable. Accordingly, the Court will not award
attorney's fees and costs to Plaintiff in this case.
the foregoing, the motion for attorney's fees (doc. no.
64) is DENIED. The Clerk ...