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The Century Foundation v. Devos

United States District Court, S.D. New York

June 22, 2018

BETSY DEVOS, in her official capacity, and the UNITED STATES DEPARTMENT OF EDUCATION, Defendants.

          OPINION & ORDER


         Plaintiff The Century Foundation ("TCF") moves for attorneys' fees and costs pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(E). Defendant, the United States Department of Education ("The Department"), opposes. For the following reasons, TCF's motion is DENIED.


         On January 23, 2018, TCF submitted two FOIA requests to the Department. Compl. Exs. B, C. The FOIA requests sought materials in connection with a notice (the "Solicitation") that the Department had released in the Federal Register the following day. See 83 Fed. Reg. 3335 (Jan. 24, 2018). The Solicitation called for public comments "concerning the performance of accrediting agencies," stated that written comments "must be received" by February 16, 2018, and explained that "[o]nly written material submitted by the deadline . . . become part of the official record." Id. Despite soliciting public comments "concerning the performance of accrediting agencies" and specifying that "[c]omments about an agency's recognition after review of a compliance report must relate to issues identified in the compliance report," id., strangely, the Department did not make publicly available the applications for recognition or the compliance reports submitted by the accrediting agencies. In other words, the Department was seeking comments on reports which it had not made available. Hence, TCF's FOIA requests sought disclosure of an application for initial recognition submitted by the Accrediting Council for Independent Colleges and Schools ("ACICS") and a compliance report submitted by the American Bar Association ("ABA"). Compl. Exs. B, C. TCF also requested a fee waiver and expedited processing of the FOIA requests in order to obtain the documents before the February 16, 2018 deadline for public comments. Id. On February 6, 2018, the Department granted TCF's request for a fee waiver, but it denied expedited processing, stating that TCF had "not demonstrated a compelling need for the information." Compl. Exs. F, G.

         Two days later, on February 8, 2018, TCF brought this action alleging violations of FOIA and the Administrative Procedure Act ("APA"). See Compl, Dkt. 9. TCF sought to compel the Department under the APA to extend the comment period and under FOIA to immediately provide the requested documents. Id. ¶¶ 66-96. Upon filing the complaint, TCF informed the Department that it would seek emergency relief unless a resolution could be reached. Elson Decl. ¶ 8. After receiving no response, TCF moved for a temporary restraining order ("TRO") and a preliminary injunction on February 13, 2018. See Order to Show Cause, Dkt, 14.

         On February 15, 2018, one day before the deadline for public comments, the Court held a hearing on the motion. The following morning, the Court entered an order granting a TRO ("TRO Opinion"). See TRO Opinion, Dkt. 19. The Court held that "TCF is entitled to a TRO prohibiting the Department from enforcing the deadline to submit written comments concerning ACICS and the ABA until the Court is in a position to rule on the [preliminary injunction.]" Id. at 5. The Court granted this relief because TCF satisfied the requirements for a TRO "with regard to its Administrative Procedure Act ("APA") claim seeking to extend the comment period." Id. Specifically, the Court held that "by ending the comment period before TCF and other groups have an opportunity to review the application, the Department may very well be acting arbitrarily and capriciously [in violation of the APA]," Id. at 7. In contrast, the Court "expresse[d] no opinion on the merits of TCF's claim that the Department also violated FOIA," and the Court did not order the Department to produce the requested documents. Id. at 5.

         Nevertheless, in the evening of the same day the TRO Opinion was entered, February 16, 2018, counsel for the Department informed counsel for TCF that "[t]he Department is providing the ACICS and ABA narrative statements to Plaintiff as an interim response to their FOIA requests." Elson Decl. ¶ 11. The Department subsequently produced the supporting exhibits accompanying the ABA Report on February 20, 2018 and the supporting exhibits accompanying the ACICS Application on February 21, 2018. Defs.' Mem. in Opp'n, Dkt. 27, at 7.

         On March 1, 2018, the Court held a hearing on the motion for a preliminary injunction. During the hearing, the Court asked counsel for the Department why the Department turned around and decided to produce the documents. March 1 Conf. Tr., Dkt. 35, at 16:21-22. Counsel explained that the Department's production under FOIA "was probably accelerated significantly beyond when it otherwise would have in the hopes that [the Department] would be able to move forward with this process and not have it delayed any further," and "frankly, [the Department] expected that if the plaintiff got all the documents and had a full week to respond, that that would be sufficient." Id. at 17:8-16. At the close of the hearing, the Court denied the motion for a preliminary injunction. The Court held that TCF's FOIA claims were rendered moot since it had received the documents it requested. Id. at 44:10-11. The Court also held that TCF's APA claim did not satisfy the requirements of a preliminary injunction because the balance of hardships no longer tipped in its favor. Id. at 44:11-19. The Court found that TCF had the opportunity to submit meaningful comments because of the production of documents beginning on February 16, 2018 and the extension of the comment period until the date of the hearing, March 1, 2018. Id. at 44:20-45:12. Thus, the TRO dissolved and the comment period ended at midnight on March 1, 2018. Id. at 46:16-19.


         TCF seeks attorneys' fees pursuant to FOIA's fee provision, 5 U.S.C. § 552(a)(4)(E), which provides:

(i) 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.
(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either-
(I) a judicial order, or an enforceable written agreement or consent decree; or
(II) a voluntary or unilateral change in position by the agency, if the complainant's ...

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