United States District Court, S.D. New York
OPINION & ORDER
HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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
(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 ...