United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION & ORDER
T. Copenhaver, Jr., United States District Judge
is plaintiff's petition for attorney's fees and
costs, filed August 17, 2016 (ECF No. 45).
Facts and Procedural History
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
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.
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
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 . . .
. . . .
• Complainant's personnel records, usually provided
by company, if available in record • All management
statements involved in decisionmaking process (appropriate
• 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).
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.
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).
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
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
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