Case Detail

FOIA Project Annotation: A federal court in New York has ruled that The Century Foundation is not entitled to attorney's fees because its FOIA suit did not cause the Department of Education to disclose documents TCF needed to provide public comments concerning the performance of accrediting agencies. Although the agency had told commenters that their comments were required to be based on compliance reports, it failed to make the compliance reports publicly available. After TCF realized that it could not comment without first reviewing the compliance reports, it filed suit under the APA to force the agency to extend the comment period. It also requested the compliance reports under FOIA. Judge Paul Crotty granted TCF a temporary restraining order to allow it time to provide comments, but denied TCF's motion for a preliminary injunction since the organization had been able to comment. TCF then filed for attorney's fees, arguing that its suit was a catalyst for disclosure of the records. The agency argued that TCF's FOIA litigation did not cause it to disclose the records and that, further, TCF's claim was insubstantial in the context of FOIA's attorney's fees provision. Crotty agreed, pointing out that "while TCF obtained the relief it sought under its FOIA claims, the Department's accelerated production of documents was not substantially caused by FOIA claims. Rather, the Department accelerated its production in response to the TRO opinion, which was exclusively based on Plaintiff's APA claim. Indeed, the holding of the TRO Opinion would have been identical even if TCF had brought only its APA claim and had not asserted FOIA claims at all." TCF argued that its lawsuit had been responsible for disclosure of the records it had requested under FOIA. But Crotty noted that "TCF conflates its FOIA claims with its FOIA requests. . .The fact that the Department produced documents by means of a response to TCF's previous FOIA requests, however, is not relevant to whether TCF's FOIA causes of action asserted in this litigation substantially caused the production." Crotty also agreed with the agency that TCF's FOIA claims were insubstantial, which was defined by the D.C. Circuit in Brayton v. Office of the Trade Representative, 641 F.3d 521 (D.C. Cir. 2011), to mean "the government was correct as a matter of law to refuse a FOIA request." Crotty observed that TCF's FOIA claims consisted of the agency's failure to produce the documents within 20 days, and two denials of requests for expedited processing. He found TCF's claim that the agency failed to meet the statutory deadline premature, noting that "during that time, the Department never communicated to TCF that it planned to withhold any of the requested documents. Thus, TCF did not exhaust its administrative remedies, and it could not prevail on its claim for failure to produce documents." However, if the agency had missed the 20-day time limit, TCF had constructively exhausted its administrative remedies and its claim was ripe for adjudication for that reason alone. Turning to the expedited processing claims, Crotty pointed out that TCF had cited a compelling need under the circumstances, but had failed to provide any more support for its claim. Although TCF's failure to support its expedited processing claim was sufficient grounds for Crotty to dismiss the claim, he instead went on to explore whether TCF qualified for a fee waiver. He faulted TCF for not showing that it was primarily involved in disseminating information, a test that may factor into eligibility for a public interest fee waiver, but that is more relevant to inclusion in the news media fee category.
Issues: Litigation - Attorney's fees - Eligibility - Causal effect

Date Filed	Doc #	Docket Text
2018-02-08	1	FILING ERROR - DEFICIENT PLEADING - FILED AGAINST PARTY ERROR COMPLAINT against Elisabeth DeVos, U.S. Department of Education. (Filing Fee $ 400.00, Receipt Number 0208-14677183)Document filed by The Century Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Elson, Alexander) Modified on 2/9/2018 (sj). (Entered: 02/08/2018)
2018-02-08	2	CIVIL COVER SHEET filed. (Elson, Alexander) (Entered: 02/08/2018)
2018-02-08	3	FILING ERROR - DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of Education, re: 1 Complaint,. Document filed by The Century Foundation. (Elson, Alexander) Modified on 2/9/2018 (sj). (Entered: 02/08/2018)
2018-02-08	4	FILING ERROR - DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of Justice, re: 1 Complaint,. Document filed by The Century Foundation. (Elson, Alexander) Modified on 2/9/2018 (sj). (Entered: 02/08/2018)
2018-02-08	5	FILING ERROR - DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS REQUEST FOR ISSUANCE OF SUMMONS as to United States Attorney for the Southern District of New York, re: 1 Complaint,. Document filed by The Century Foundation. (Elson, Alexander) Modified on 2/9/2018 (sj). (Entered: 02/08/2018)
2018-02-08	6	FILING ERROR - DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS REQUEST FOR ISSUANCE OF SUMMONS as to Betsy DeVos, re: 1 Complaint. Document filed by The Century Foundation. (Elson, Alexander) Modified on 2/9/2018 (sj). (Entered: 02/08/2018)
2018-02-08	7	FILING ERROR - WRONG PDF FILE ASSOCIATED WITH DOCKET ENTRY - RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by The Century Foundation.(Elson, Alexander) Modified on 2/9/2018 (lb). (Entered: 02/08/2018)
2018-02-09		***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - PDF ERROR. Notice to Attorney Alexander Samuel Elson to RE-FILE Document 7 Rule 7.1 Corporate Disclosure Statement. (PDF is not Signed) (lb) (Entered: 02/09/2018)
2018-02-09	8	AMENDED RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by The Century Foundation.(Elson, Alexander) (Entered: 02/09/2018)
2018-02-09		***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Alexander Samuel Elson. The party information for the following party/parties has been modified: The Century Foundation; United States Department of Education; Betsy Devos. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error; party role was entered incorrectly; party text was omitted. (sj) (Entered: 02/09/2018)
2018-02-09		***NOTICE TO ATTORNEY REGARDING CIVIL. CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Alexander Samuel Elson. The following case opening statistical information was erroneously selected/entered: Cause of Action code 5:551. The following correction(s) have been made to your case entry: the Cause of Action code has been modified to 5:702. (sj) (Entered: 02/09/2018)
2018-02-09		***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Alexander Samuel Elson to RE-FILE Document No. 1 Complaint,. The filing is deficient for the following reason(s): the wrong party/parties whom the pleading is against were selected;. Re-file the pleading using the event type Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (sj) (Entered: 02/09/2018)
2018-02-09		CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Paul A. Crotty. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (sj) (Entered: 02/09/2018)
2018-02-09		Magistrate Judge Andrew J. Peck is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (sj) (Entered: 02/09/2018)
2018-02-09		Case Designated ECF. (sj) (Entered: 02/09/2018)
2018-02-09		***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Alexander Samuel Elson to RE-FILE Document No. 6 Request for Issuance of Summons, 3 Request for Issuance of Summons,. The filing is deficient for the following reason(s): Caption Error. All defendant names must been seen and must match exactly as pleading. If all defendant names do not fit, list leading defendant followed by "et al". Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (sj) (Entered: 02/09/2018)
2018-02-09		***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Alexander Samuel Elson to RE-FILE Document No. 5 Request for Issuance of Summons, 4 Request for Issuance of Summons. The filing is deficient for the following reason(s): Summonses are only issued to parties in the case. (sj) (Entered: 02/09/2018)
2018-02-09	9	COMPLAINT against Betsy Devos, United States Department of Education. Document filed by The Century Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Elson, Alexander) (Entered: 02/09/2018)
2018-02-09	10	REQUEST FOR ISSUANCE OF SUMMONS as to Betsy DeVos, re: 9 Complaint,. Document filed by The Century Foundation. (Elson, Alexander) (Entered: 02/09/2018)
2018-02-09	11	REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Education, re: 9 Complaint,. Document filed by The Century Foundation. (Elson, Alexander) (Entered: 02/09/2018)
2018-02-12	12	ELECTRONIC SUMMONS ISSUED as to Betsy Devos. (vf) (Entered: 02/12/2018)
2018-02-12	13	ELECTRONIC SUMMONS ISSUED as to United States Department of Education. (vf) (Entered: 02/12/2018)
2018-02-13	14	ORDER TO SHOW CAUSE FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER. It is hereby ORDERED that Defendants Betsy Devos and United States Department of Education shall show cause before this Court in Room 14C, 500 Pearl Street, New York, New York, on February 15, 2018, at 11o'clock in the AM or as soon thereafter as counsel can be heard, why an order should not be issued, pursuant to Federal Rule of Civil Procedure 65, preliminarily enjoining defendants during the pendency of this action from (1) enforcing February 16, 2018 as the end of the comment period, as noticed in Solicitation published in the Federal Register on January 24, 2018 at 83 Fed. Reg. 3335; (2) continuing to withhold any and all non-exempt records necessary for TCF to submit comments in response to the Defendant's January 24, 2018 Solicitation; (3) continuing to withhold any and all non-exempt records responsive to TCF's January 23, 2018 ACICS and ABA FOIR Requests as identified in the Complaint; (4) closing the comment period announced in the January 24, 2018 Solicitation, 83 Fed. Reg. 3335, until 21 days after Plaintiff has received the documents to which it is entitled and which are necessary to inform Plaintiff's comments. ORDERED that the bond requirement of Federal Rule Civil Procedure 65(c) is waived; and it is further ORDERED that personal service of a copy of this Order to Show Cause together with the papers on which it is based, and the Summons and Complaint be served on or before the close of business, Wednesday, February 14, 2018 upon the defendants by complying with Federal Rule of Civil Procedure 4.1(i), shall be deemed good and sufficient service thereof. (Show Cause Hearing set for 2/15/2018 at 11:00 AM in Courtroom 14C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty.) (Signed by Judge Paul A. Crotty on 2/13/18) (yv) (Entered: 02/14/2018)
2018-02-14	15	MEMORANDUM OF LAW in Support re: 14 Order to Show Cause,,,,,,, . Document filed by The Century Foundation. (Elson, Alexander) (Entered: 02/14/2018)
2018-02-14	16	DECLARATION of Alexander Elson in Support re: 14 Order to Show Cause,,,,,,,. Document filed by The Century Foundation. (Attachments: # 1 Exhibit 1)(Elson, Alexander) (Entered: 02/14/2018)
2018-02-14	17	DECLARATION of Tariq Habash in Support re: 14 Order to Show Cause,,,,,,,. Document filed by The Century Foundation. (Elson, Alexander) (Entered: 02/14/2018)
2018-02-15	18	NOTICE OF APPEARANCE by Rachael Lightfoot Doud on behalf of Betsy Devos, United States Department of Education. (Doud, Rachael) (Entered: 02/15/2018)
2018-02-15		Minute Entry for proceedings held before Judge Paul A. Crotty: Oral Argument held on 2/15/2018 re: 14 Order to Show Cause. REMARK: Alexander Elson appeared for the plaintiff. AUSA's Rachael Doud and Arastu Chaudhury appeared for the government. Argument was heard from both sides. The Court will render a decision, shortly. See transcript for details (Court Reporter Carol Ganley) (dgo) (Entered: 02/15/2018)
2018-02-15	19	OPINION AND ORDER: The Court hereby enters a TRO enjoining the Department from enforcing the deadline for third parties to comment on the initial application by ACICS and the compliance report submitted by the ABA. This TRO is effective until the earlier of: (1) March 1, 2018, or (2) the disposition of the motion for a preliminary injunction. A hearing on the motion will be scheduled for February 22, 2018 at 11:30. SO ORDERED. (Signed by Judge Paul A. Crotty on 2/15/2018) (dgo) (Entered: 02/16/2018)
2018-02-16	20	AFFIDAVIT OF SERVICE (FOIA CASE) of Summons and Complaint, served. Betsy Devos served on 2/12/2018, answer due 3/14/2018; United States Department of Education served on 2/12/2018, answer due 3/14/2018. Service was made by MAIL. Document filed by The Century Foundation. (Elson, Alexander) (Entered: 02/16/2018)
2018-02-16	21	AFFIDAVIT of Mark A Russell, Jr Affidavit of Service of Order to Show Cause and Accompanying Papers on U.S. Department of Education . Document filed by The Century Foundation. (Elson, Alexander) (Entered: 02/16/2018)
2018-02-16	22	AFFIDAVIT of Mark A Russell Jr Affidavit of Service of Order to Show Cause and Accompanying Papers on U.S. Department of Justice . Document filed by The Century Foundation. (Elson, Alexander) (Entered: 02/16/2018)
2018-02-16	23	DECLARATION of Alexander Elson Declaration of Service of Order to Show Cause and Accompanying Papers on U.S. Attorneys Office for the Southern District of New York . Document filed by The Century Foundation. (Elson, Alexander) (Entered: 02/16/2018)
2018-02-16	24	LETTER MOTION to Continue Hearing addressed to Judge Paul A. Crotty from Rachael L. Doud dated February 16, 2018. Document filed by Betsy Devos, United States Department of Education.(Doud, Rachael) (Entered: 02/16/2018)
2018-02-20	25	ORDER granting 24 Letter Motion to Continue. The motion will be adjourned to March 1, 2018 at 4pm. So Ordered. (Signed by Judge Paul A. Crotty on 2/20/18) (yv) (Entered: 02/20/2018)
2018-02-20		Set/Reset Deadlines as to Motion Hearing set for 3/1/2018 at 04:00 PM before Judge Paul A. Crotty. (yv) (Entered: 02/20/2018)
2018-02-27	26	MOTION for Allyson Beth Baker to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14749872. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Accrediting Council for Independent Colleges and Schools. (Attachments: # 1 Affidavit of Allyson B. Baker in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Certificate of Good Standing (District of Columbia), # 3 Text of Proposed Order for Admission Pro Hac Vice)(Baker, Allyson) (Entered: 02/27/2018)
2018-02-27	27	OPPOSITION BRIEF re: 14 Order to Show Cause,,,,,,, Memorandum in Opposition to Plaintiff's Motion for a Preliminary Injunction . Document filed by Accrediting Council for Independent Colleges and Schools, United States Department of Education.(Doud, Rachael) (Entered: 02/27/2018)
2018-02-27	28	OPPOSITION BRIEF re: 14 Order to Show Cause,,,,,,, Memorandum in Opposition to Plaintiff's Motion for a Preliminary Injunction . Document filed by Betsy Devos, United States Department of Education. (Attachments: # 1 Declaration of Donna S. Mangold, # 2 Declaration of Herman Bounds, Jr., # 3 Exhibit A to Bounds Declaration, # 4 Exhibit B to Bounds Declaration, # 5 Exhibit C to Bounds Declaration, # 6 Declaration of Jill B. Siegelbaum, # 7 Ex. A to Siegelbaum Declaration, # 8 Ex. B-1 to Siegelbaum Declaration, # 9 Ex. B-2 to Siegelbaum Declaration, # 10 Exhibit B-3 to Siegelbaum Declaration, # 11 Exhibit B-4 to Siegelbaum Declaration, # 12 Exhibit B-5 to Siegelbaum Declaration, # 13 Exhibit B-6 to Siegelbaum Declaration, # 14 Exhibit B-7 to Siegelbaum Declaration, # 15 Exhibit B-8 to Siegelbaum Declaration, # 16 Exhibit B-9 to Siegelbaum Declaration, # 17 Exhibit B-10 to Siegelbaum Declaration, # 18 Exhibit B-11 to Siegelbaum Declaration, # 19 Exhibit B-12 to Siegelbaum Declaration, # 20 Exhibit B-13 to Siebelbaum Declaration, # 21 Exhibit C to Siegelbaum Declaration)(Doud, Rachael) (Entered: 02/27/2018)
2018-02-28		CALENDAR ENTRY **REMINDER**: Oral Argument is scheduled to go forward on: Thursday, March 1, 2018 @ 4:35 PM, 500 Pearl Street, Courtroom 14-C before Judge Paul A. Crotty, U.S.D.J. **Please note the time change**. If the parties deem the conference unnecessary at this time, either party can e-mail the Courtroom Deputy at David_C_Gonzalez@nysd.uscourts.gov ----- A PDF IS NOT ATTACHED TO THIS ENTRY ----- (By David Gonzalez - Courtroom Deputy).(dgo) (Entered: 02/28/2018)
2018-02-28	29	MOTION for Sameer Parvez Sheikh to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14754062. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Accrediting Council for Independent Colleges and Schools. (Attachments: # 1 Affidavit of Sameer P. Sheikh in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Certificate of Good Standing (District of Columbia), # 3 Text of Proposed Order for Admission Pro Hac Vice)(Sheikh, Sameer) (Entered: 02/28/2018)
2018-02-28		>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 29 MOTION for Sameer Parvez Sheikh to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14754062. Motion and supporting papers to be reviewed by Clerk's Office staff. . The document has been reviewed and there are no deficiencies. (jc) (Entered: 02/28/2018)
2018-02-28	30	ORDER granting 26 Motion for Allyson Beth Baker to Appear Pro Hac Vice (HEREBY ORDERED by Judge Paul A. Crotty)(Text Only Order) (Crotty, Paul) (Entered: 02/28/2018)
2018-02-28	31	ORDER granting 29 Motion for Sameer Parvez Sheikh to Appear Pro Hac Vice (HEREBY ORDERED by Judge Paul A. Crotty)(Text Only Order) (Crotty, Paul) (Entered: 02/28/2018)
2018-02-28	32	LETTER addressed to Judge Paul A. Crotty from Allyson B. Baker, Esq. dated February 28, 2018 re: ACICS' Request to Move to Intervene. Document filed by Accrediting Council for Independent Colleges and Schools. (Attachments: # 1 Declaration of Sameer P. Sheikh)(Baker, Allyson) (Entered: 02/28/2018)
2018-03-01	33	REPLY re: 14 Order to Show Cause,,,,,,, . Document filed by The Century Foundation. (Attachments: # 1 Affidavit Declaration of Alexander Elson, # 2 Exhibit Exhibit 1 to the Declaration of Alexander Elson, # 3 Exhibit Exhibit 2 to the Declaration of Alexander Elson, # 4 Exhibit Exhibit 3 to the Declaration of Alexander Elson, # 5 Exhibit Exhibit 4 to the Declaration of Alexander Elson, # 6 Exhibit Exhibit 5 to the Declaration of Alexander Elson, # 7 Exhibit Exhibit 6 to the Declaration of Alexander Elson, # 8 Affidavit Declaration of Robert Shireman, # 9 Exhibit Exhibit 1 to the Declaration of Robert Shireman, # 10 Affidavit Declaration of Clare McCann, # 11 Exhibit Exhibit 1 to the Declaration of Clare McCann, # 12 Exhibit Exhibit 2 to the Declaration of Clare McCann, # 13 Exhibit Exhibit 3 to the Declaration of Clare McCann, # 14 Affidavit Declaration of Ben Miller, # 15 Exhibit Exhibit 1 to the Declaration of Ben Miller, # 16 Exhibit Exhibit 2 to the Declaration of Ben Miller)(Elson, Alexander) (Entered: 03/01/2018)
2018-03-01		Minute Entry for proceedings held before Judge Paul A. Crotty: Oral Argument held on 3/1/2018 re: 14 Order to Show Cause. REMARK: Alexander Elson appeared for the plaintiff. AUSA's Rachael Doud and Sarah Normand appeared for the government. The Court heard argument from both sides. The Preliminary Injunction is DENIED. See transcript for details. (Court Reporter Andrew Walker) (dgo) (Entered: 03/01/2018)
2018-03-14	34	NOTICE OF VOLUNTARY DISMISSAL Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the plaintiff(s) and or their counsel(s), hereby give notice that the above-captioned action is voluntarily dismissed, without prejudice against the defendant(s) All Defendants. Document filed by The Century Foundation. (Elson, Alexander) (Entered: 03/14/2018)
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