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Justice v. Mine Safety and Health Administration

United States District Court, S.D. West Virginia, Charleston

March 31, 2017



          John T. Copenhaver, Jr., United States District Judge

         Pending is plaintiff's petition for attorney's fees and costs, filed August 17, 2016 (ECF No. 45).

         I. Facts and Procedural History

         The facts of this case are set forth fully in the court's previous memorandum opinion and order. See Mem. Op. & Order, No. 2:14-cv-14438, 2015 WL 4621543 (S.D. W.Va. July 31, 2015) (ECF No. 39). Only a brief recapitulation is provided here.

         Plaintiff, Marshall Justice, submitted a Freedom of Information Act (“FOIA”) request to the Mine Safety and Health Administration (“MSHA”) on December 5, 2013. Justice sought all non-privileged material related to MSHA's investigation of an earlier administrative complaint (dismissed by plaintiff on November 26, 2014) in which he alleged that MSHA discriminated against him for engaging in protected safety-related activities. Compl. ¶ 11. MSHA notified plaintiff by letter dated January 24, 2014 that it would require ninety working days (presumably calculated to expire on June 3, 2014) to process and complete plaintiff's FOIA request because it needed to search for and collect records from separate offices and determine which records if any were exempt under FOIA.

         Plaintiff's two-count complaint in this case was filed on April 10, 2014. Count I alleges that defendant violated FOIA by failing to release plaintiff's requested records. Compl. ¶¶ 19-20 (ECF No. 1). Count II asks the court for declaratory relief to the same effect. See Compl. p. 6 (WHEREFORE clause).

         On May 2, 2014, MSHA opened its 112-page file to plaintiff, of which it released 45 pages without redaction, released 26 pages with partial redactions, and withheld 41 pages. On September 22, 2014, MSHA reinstated policies that had been in effect prior to 2002 that state, inter alia, that:

[i]nformation [that is to be] released to complainants and their representatives in closed Section 105(c) discrimination cases filed under the Freedom of Information Act . . . [includes]:
. . . .
• Complainant's personnel records, usually provided by company, if available in record • All management statements involved in decisionmaking process (appropriate redactions applied)
• Position statements prepared by Company attorney • All records provided by company to support its position (appropriate redactions applied)
• Heavily redacted witness statements taken with management/company attorney present (appropriate names and identifying information redacted)
. . . .

See Pl.'s Mem. in Opp. to Def.'s Mot. to Stay Disc. and Amend Scheduling Order, Ex. at 2 (ECF. No. 24-1). Defendant's in-house counsel, April Nelson, emailed plaintiff's counsel, Sam Petsonk, a copy of the policy renewal notice the same date that it was issued. In accordance with its reinstated policy, MSHA released more pages on December 16, 2014, such that with respect to plaintiff's 112-page file, it has released in total 51 pages without redactions, released 31 with some redactions, and withheld 30 completely. Assistant U.S. Attorney Gary Call explained the policy change and its application to plaintiff in a letter to plaintiff's counsel as follows:

[I]n reviewing a number of case files to evaluate more specifically the probable privacy impact of the release of statements, MSHA believed that more management officials, especially those speaking in front of company attorneys or other company representatives, likely would experience no personal privacy impact in the release of their statements. Subsequently, MSHA reprocessed under FOIA any case file upon request, and has issued a number of supplemental responses to different FOIA requesters, including you.

Def.'s Mot. for Summ. J. Ex. 13 at 2 (ECF No. 30-1).

         On July 31, 2015, this court ordered MSHA to reconsider its decision to withhold four of the pages in plaintiff's file and to meet with Justice to attempt an amicable resolution of the dispute over those pages. See July 31, 2015 Mem. Op. and Order (ECF No. 39) (hereinafter “July 31, 2015 Order”). If an amicable resolution proved impossible, the court ordered MSHA to submit the disputed pages for in camera review. Those four pages - MSHA000090 through MSHA000093 - are described in MSHA's Vaughn index as “Memoranda of Interview of MSHA inspectors by MSHA Section 105(c) complaint investigator, conducted in December of 2013, ” henceforth referred to as the two “inspector MOIs.” See Notice of Disclosure 7-10 (ECF No. 40). Each memorandum consists of two pages. As indicated by the Vaughn index, the first is composed of MSHA000090 and 91, and the second of MSHA000092 and 93.

         On August 18, 2015, MSHA released partially redacted versions of the inspector MOIs to plaintiff. Plaintiff objected to partial redaction of the MOIs, and the court later passed on the MOIs via in camera review, ruling that partial disclosure of the MOIS was sufficient to fulfill the expectations set by FOIA. See, March 29, 2016 Mem. Op. and Order (ECF No. 42). In its Judgment Order of August 17, 2016, the court rendered judgment for defendant on Count II and for plaintiffon Count I with respect to all those documents disclosed bythat point by defendant, but not with respect to redactedportions of the inspector MOIs. J. Order 1-2 (ECF No. 43).

         In his petition for costs and fees, plaintiff argues that he has “substantially prevailed” and is entitled to attorney's fees and costs under FOIA, 5 U.S.C. § 552(a)(4)(E). In particular, plaintiff argues that he obtained relief in this case through the release of a substantial amount of documents and through “a voluntary or unilateral change in position by the agency.” See Pl.'s Pet. for Att'y's Fees and Costs 4 (ECF No. 46) (hereinafter “Pet.”); 5 U.S.C. § 552(a)(4)(E). The petition states that

Defendant substantially revised its disclosure policy in accordance with the Plaintiff's demand for declaratory judgment, after the Plaintiff continued to prosecute this case beyond initial dispositive motions. Defendant's decision to share minimally-redacted investigative files with mine safety discrimination complainants is a major improvement in the transparency and efficacy of anti-discrimination policy and procedure in the mining industry that will have nationwide impacts for all of America's coal, metal, and nonmetal miners - quite a substantial impact.

Pet. 4. Plaintiff also contends that his counsel's rates were reasonable and justified by the market for legal services. Pl.'s Reply in Supp. of Pet. for Att'y's Fees 7-9 (ECF No. 50) (hereinafter “Reply”).

         Defendant MSHA responds that plaintiff did not substantially prevail on either Count. MSHA argues that none of its disclosures was “the product of a judicial order, an enforceable written agreement, ” or a voluntary policy change by the agency under 5 U.S.C. § 552(a)(4)(E). Def.'s Resp. to Pet. 10 (ECF No. 49) (hereinafter “Resp.”). It contends that plaintiff must show that “there is a causal link between the action and the release of the documents, ” and that none of its successive documentary releases met this standard. Id. 11. Defendant further contends that even if plaintiff were eligible for fees because he had substantially prevailed, plaintiff is not entitled to his fees because his ...

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