Unpublished Disposition, 881 F.2d 1085 (9th Cir. 1989)

MEMORANDUM^* 

Carol Van Strum, Paul Merrell, and Northwest Coalition for alternatives to Pesticides ("NCAP") appeal the district court's denial of their motion for attorney fees pursuant to 5 U.S.C. § 552(a) (4) (E) for fees incurred in their Freedom of Information Act suit ("FOIA"). As the district court did not abuse its discretion in determining that Appellants had not "substantially prevailed" in their FOIA suit, we affirm the court's denial of statutory attorney fees.

Appellants filed several individual FOIA requests with the Environmental Protection Agency ("EPA") between 1981 and 1984, as well as a consolidated request in February, 1984, seeking records pertaining to herbicide spraying in the Siuslaw National Forest in Oregon. EPA partially filled two of Merrell's four requests, but did not respond to his remaining requests. EPA apparently sent no documents in response to either Van Strum's or NCAP's individual FOIA requests. In February 1984, Van Strum and Merrell filed a consolidated FOIA request which they characterized as clarifying and "elaborat [ing] on" their previous FOIA requests. Over the next five months, EPA produced six packages of documents--each containing 80-100 items--in response to this February request.

Viewing their requests as still largely unmet, Appellants filed a complaint in October 1984 charging EPA with "evasive, incomplete, and dilatory" production efforts and seeking an order directing EPA to produce the requested materials. The parties later entered into a stipulated agreement setting forth a document release schedule based on four agreed-upon dates. Document production continued until 1988, by which time EPA had released over 36,000 pages of records. In February 1988, the district court granted EPA's summary judgment motion, holding that EPA's production efforts had been "sufficiently thorough." The court determined that EPA had conducted an adequate "good faith" search producing all records to which Appellants were entitled and providing adequate justification for the non-production of other requested documents. Neither Van Strum, Merrell, nor NCAP appealed this summary judgment ruling.

Appellants subsequently filed a motion for $241,752 in attorney fees pursuant to 5 U.S.C. § 552(a) (4) (E). Denying this motion, the district court held that Appellants had not "substantially prevailed" in their underlying FOIA suit since EPA had launched an extensive and "good faith" search for documents responsive to the consolidated February 1984 request and that any production delays were unavoidable given the broad scope of the request. The court also held that administrative compliance with statutory production requirements, rather than Appellants' October 1984 FOIA suit, triggered the release of the bulk of the requested documents. The denial of this motion forms the basis of this appeal. We review the denial of attorney fees pursuant to 5 U.S.C. § 552(a) (4) (E) for abuse of discretion. Local 598 v. Department of the Army, Corps of Engineers, 841 F.2d 1459, 1461 (9th Cir. 1988).

Under 5 U.S.C. § 552(a) (4) (E), a district court may award attorney fees if it concludes that a FOIA requester has "substantially prevailed." While the statute does not enumerate the requirements necessary to establish when a FOIA requester has "substantially prevailed" within the meaning of the Sec. 552(a) (4) (E), this circuit has interpreted this language as placing upon requesters the burden of establishing their eligibility for statutory attorney fees by showing that: (1) the filing of the action could reasonably have been regarded as necessary to obtain the information, and (2) the filing of the action had a substantial causative effect on the delivery of the requested information. Church of Scientology v. United States Postal Serv., 700 F.2d 486, 489 (9th Cir. 1983) [hereinafter Church of Scientology]; accord Miller v. United States Dep't of State, 779 F.2d 1378, 1389 (8th Cir. 1985); Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2nd Cir. 1976).

The district court committed no error in determining that Appellants had not "substantially prevailed" within the meaning of Sec. 552(a) (4) (E). With respect to the "necessity" of Appellants' FOIA suit, the district court appropriately concluded that EPA's "good faith" production efforts militated against the necessity of suit. See, e.g., Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984) (remanding district court's conclusion that requester "substantially prevailed" when court failed to consider "whether the agency upon actual and reasonable notice of the request, made a good faith effort to search out material and to pass on whether it should be disclosed") (quoting Cox v. United States Dep't of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979)); Church of Scientology, 700 F.2d at 491; Ginter v. Internal Revenue Serv., 648 F.2d 469, 473 (8th Cir. 1981) (denying motion for fees since no evidence that government had not acted in good faith).¹ 

Moreover, we find no error in the district court's determination that Appellants' FOIA suit did not have a substantial causative effect on EPA's production of materials. In assessing the causal nexus between the Appellants' FOIA suit and EPA's delivery of requested materials, the court properly considered such factors as the extent to which legal action enhanced the pace of production, or triggered the release of additional or key documents which would not have otherwise been produced by the agency. See, e.g., Chilivis v. Securities & Exchange Comm'n, 673 F.2d 1205, 1212 (11th Cir. 1982); Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir. 1980); Vermont Low Income Advocacy Council, 546 F.2d at 515 (FOIA suit lacked "substantial causative effect" when resulting production of documents "not one whit different than if [requesters] had withheld legal action"); Cook v. Watt, 597 F. Supp. 552, 555 (D. Alaska 1984); Exner v. Federal Bureau of Investigation, 443 F. Supp. 1349, 1353 (S.D. Cal. 1978), aff'd, 612 F.2d 1202, 1207 (9th Cir. 1980).

AFFIRMED.