Coven v. United States Personnel Management, Office of, No. 2:2007cv01831 - Document 68 (D. Ariz. 2010)

Court Description: ORDER denying 65 Plaintiff's Motion for Costs and Fees. Signed by Judge Robert C Broomfield on 4/2/10.(LSP)
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Coven v. United States Personnel Management, Office of 1 Doc. 68 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Daniel Saul Coven, 13 Plaintiff, 14 vs. 15 United States Office of Personnel Management 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) No. 07-CIV-01831-PHX-RCB O R D E R Currently pending before the court is a motion for attorney’s 19 fees and costs by plaintiff pro se Daniel Saul Coven (doc. # 65). 20 Bluntly (and accurately) stating that “[p]laintiff has not carried 21 his burden to establish the amount and basis for awarding 22 anything[,]” defendant, the United States Office of Personnel 23 Management (“OPM”), opposes this motion. 24 1:20-21. 25 plaintiff’s motion in its entirety. Resp. (doc. # 67) at For the reasons set forth herein, the court denies 26 Background 27 In Coven v. U.S. Office of Personnel Management, 2009 WL 28 3174423 (D.Ariz. Sept. 29, 2009) (“Coven I”), familiarity with 1 which is assumed, the court, inter alia, denied plaintiff’s motion 2 for attorney’s fees. 3 the court explained that “as a pro se litigant,” plaintiff was not 4 entitled to recover attorney’s fees under 5 U.S.C. § 552(a)(4). 5 Id. at *19 (citations omitted). Recognizing that plaintiff’s pro se 6 status did not preclude an award of costs under that statute, the 7 court, nonetheless, denied that claim without prejudice to renew. 8 The court reasoned that an award of costs would be “premature” 9 because no judgment had been entered at that time. 10 Id. at *19 - *20. In denying such relief, Id. at *20. After entry of judgment, plaintiff Coven filed the pending 11 motion seeking an “award [of] costs and fees or alternatively [an] 12 award [of] partial costs.” 13 added). 14 allowing for recovery of “reasonable attorney fees and other 15 litigation costs . . . if the complainant has obtained relief 16 through . . . - a voluntary or unilateral change in position by the 17 agency, if the complainant’s claim is not insubstantial.” 18 § 552(a)(4)(E)(ii)(II) (West Supp. 2009). 19 because OPM denied his original request for job vacancy 20 information, and OPM “effectively upheld that decision” by 21 “claim[ing] exemption 21 in their Answer . . . , [his] claim was 22 not insubstantial.” 23 omitted) (footnote added). 24 § 552(a)(4)(E)(ii)(II) did not become effective until December 31, 25 2007, and so he is limiting his request for fees and costs to those Pl. Mot. (doc. # 65) at 1 (emphasis Plaintiff is relying upon a 2007 amendment to FOIA, 5 U.S.C. Plaintiff asserts that Pl. Mot. (doc. #65) at 1:24-2:2 (citation Plaintiff realizes that 26 27 28 1 FOIA exemption two protects from disclosure “matters that are – related solely to the internal personnel rules and practices of an agency[.]” 5 U.S.C. § 552(b)(2) (West 2007). -2- 1 incurred after the effective date of that amendment. 2 2:4-8. 3 OPM opposes this motion on three grounds. See id. at First, it argues 4 that plaintiff is not eligible for an award of fees or costs 5 because he did not “substantially prevail” under the amended or 6 pre-amendment version of 5 U.S.C. § 552(a)(4)(E)(ii). 7 contends that plaintiff cannot rely upon the amended version of 8 that statute because it cannot be applied retroactively. 9 even if plaintiff is “eligible” to recover his costs under the 10 amended statute, OPM asserts that he is not entitled to such an 11 award because the four factors which a court must assess to 12 determine entitlement all weigh in favor of denying costs. 13 OPM argues that the court must deny this motion. 14 15 Second, OPM Third, Thus, Discussion At the outset, the court observes that “[a]ttorney fee [and 16 cost] issues are ancillary to the underlying action and hence 17 survive independently under the court’s equitable jurisdiction.” 18 Crews v. Internal Revenue, 2000 WL 900800, at *6 (C.D.Cal. April 19 26, 2000) (citing, inter alia, Carter v. Veterans Admin., 780 F.2d 20 1479, 1481 (9th Cir. 1986)). 21 plaintiff’s motion for costs without prejudice to renew, obviously 22 it retains jurisdiction to consider that motion now, even after 23 entry of judgment. 24 Moreover, because this court denied Turning briefly to his renewed request for attorney’s fees, 25 the court adheres to its prior ruling that because plaintiff Coven 26 is pro se, he is not entitled to collect such fees under 5 U.S.C. 27 § 552(a)(4). 28 Accordingly, the court denies plaintiff’s motion to the extent he See Coven I, 2009 WL 3174423, at *19 (citing cases). -3- 1 is seeking attorney’s fees. 2 Before addressing OPM’s opposition to an award of costs 3 herein, there is a glaring deficiency in plaintiff’s motion which 4 OPM did not mention. 5 documentation for plaintiff’s cost request. 6 does not include an affidavit or declaration specifying the nature 7 of the litigation costs which he purportedly incurred, and when he 8 incurred those costs. 9 way to determine whether plaintiff’s claimed litigation costs were 10 “reasonably incurred” within the meaning of the relevant statute. 11 Even if plaintiff had provided the necessary supporting 12 documentation, as will be seen, still, he is not entitled to 13 recover his costs. 14 There is a complete lack of supporting Plaintiff’s motion Without such supporting proof, there is no An award of attorney’s fees or costs, or both, under the FOIA 15 requires a plaintiff to “demonstrate both eligibility and 16 entitlement to the award.” 17 F.3d 610, 614 (9th Cir. 2009) (citation omitted). 18 requires a showing that a plaintiff “has ‘substantially prevailed’ 19 on his claim.” 20 that “a plaintiff is eligible for [costs] under the FOIA, the 21 district court has the discretion to determine whether the 22 plaintiff is entitled to fees.” 23 omitted). 24 standards.” 25 2009) (citation omitted). 26 Or. Natural Desert Ass’n v. Locke, 572 Id. (citation omitted). Eligibility Once a court determines Id. (citation and footnote “These are separate considerations governed by their own Waage v. I.R.S., 656 F.Supp.2d 1235, 1238 (S.D.Cal. “Prior to its most recent amendments, the FOIA had a basic 27 fee provision: ‘The court may assess against the United States 28 reasonable attorney fees and other litigation costs reasonably -4- 1 incurred in any case under this section in which the complainant 2 has substantially prevailed.’” Or. Natural Desert Ass’n, 572 F.3d 3 at 614 (quoting 5 U.S.C. § 552(a)(4)(E) (prior to amendment)). 4 2007 OPEN Government Act made several amendments to the FOIA, 5 including expanding the conditions under which a plaintiff can 6 recover attorney fees and costs pursuant to section 552(a)(4)(E). 7 One of those amendments modified the “substantially prevailed” 8 language, making a plaintiff eligible for such recovery if the 9 agency makes a voluntary or unilateral change in position. The See 5 10 U.S.C. § 552(a)(4)(E)(i)(ii)(II). 11 for costs and fee recovery under FOIA,2 Congress was directly 12 responding to the Supreme Court’s decision in Buckhannon and its 13 progeny which had “‘eliminated the ‘catalyst theory’ for attorneys’ 14 fees recovery under certain federal civil rights laws[,]’” as well 15 as under FOIA. 16 153 Cong. Rec. S15701-04 (daily ed. Dec. 14, 2007) (statement of 17 Sen. Leahy, sponsor of the 2007 Amendments)). 18 In reviving that catalyst theory Or. Natural Desert Ass’n, 572 F.3d at 615 (quoting The Ninth Circuit in Or. Natural Desert Ass’n, unequivocally 19 held that the “2007 Amendments contain a new waiver of sovereign 20 immunity for recovery of attorney fees [and costs] under the 21 catalyst theory, and they do not explicitly apply that waiver 22 retroactively.” 23 Heavily relying upon that holding, OPM simply asserts that the 24 “catalyst theory is inapplicable” here. Or. Natural Desert Ass’n, 572 F.3d at 617. Resp. (doc. # 67) at 2:25. 25 26 27 28 2 Generally speaking, the catalyst theory “posits that a plaintiff is a ‘prevailing party’ if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598, 601, 121 S.Ct. 1835, 1838, 149 L.Ed.2d 855 (2001). -5- 1 OPM offers no analysis. 2 as noted earlier, plaintiff filed this action on September 25, 3 2007, prior to the December 31, 2007, effective date of this 4 amendment, he cannot avail himself of the catalyst theory of 5 recovery. 6 establish his eligibility for costs under section 552(a)(4)(E)(i), 7 plaintiff Coven must show that he “substantially prevailed” as the 8 courts interpreted that phrase pre-2007 amendment. 9 Presumably OPM’s theory is that because, Hence, evidently it is also OPM’s position that to There is no need to delve into that retroactivity issue here 10 because even assuming arguendo that plaintiff Coven can avail 11 himself of the 2007 amendment, adopting the catalyst theory for fee 12 recovery, he cannot prevail on the merits. 13 plaintiff is focusing upon whether his claim was “not 14 insubstantial.” 15 motion omits any discussion however of the preceding requirement in 16 that statute – “a voluntary or unilateral change in position by the 17 agency [OPM][.]” 18 Coven must show that “(1) the filing of the action could reasonably 19 have been regarded as necessary to obtain the information; and (2) 20 the filing of the action had a substantial causative effect on the 21 delivery of the information.” 22 U.S. Postal Service, 700 F.2d 486, 489 (9th Cir. 1983) (emphases in 23 original) (citation omitted). 24 particular case, that the suit was reasonably necessary and that a 25 causal nexus exists between the action and surrender of information 26 . . . is a factual determination for the district court to 27 resolve.” 28 has not brought any facts whatsoever to the court’s attention to As alluded to earlier, See 5 U.S.C. § 552(a)94)(E)(i)(II). See id. Id. at 489. Plaintiff’s To satisfy that requirement, plaintiff Church of Scientology of Cal. v. “Whether a party has shown, in a The difficulty here is that plaintiff Coven -6- 1 establish either of those threshold conditions. 2 Moreover, as the court recognized in Coven I, and Deputy 3 Director of the USAJOBS® program detailed in his previously filed 4 declaration, “due to a change in [its] policy[,] . . . 5 to provide all available records requested by Plaintiff.” Coven I, 6 2009 WL 3174423, at *3 (citations and internal quotation marks 7 omitted); see also Harrison Decl’n (doc. #39-2) at 3, ¶ (10), et 8 seq.. 9 might have that the filing of this lawsuit had a substantial OPM decided The foregoing substantially undermines any theory plaintiff 10 causative effect on his ultimate receipt of the requested 11 information. 12 of showing that he is eligible for costs pursuant to 5 U.S.C. 13 §§ 552(a)(4)(E)(i) and 552(a)(4)(E)(ii)(II), his motion is denied. 14 Thus, because plaintiff Coven has not met his burden Having concluded that plaintiff Coven cannot clear the first 15 hurdle of eligibility for costs under FOIA, the court does not 16 reach the issue of plaintiff’s entitlement to such an award. 17 Sterrett v. Department of the Navy, 2010 WL 330086, at *6 (S.D.Cal. 18 Jan. 20, 2010) (citation omitted) (because “Plaintiff has not shown 19 that she is eligible for an award of attorney’s fees and costs 20 pursuant to FOIA[,] . . . the court need not address whether 21 Plaintiff is entitled to such an award.”) See 22 In sum, for the reasons set forth above, the court DENIES in 23 all respects plaintiff’s “Motion for Costs and Fees” (doc. # 65). 24 DATED this 2nd day of April, 2010. 25 26 27 28 -7- 1 Copies to counsel of record and plaintiff pro se 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-