Case Detail

FOIA Project Annotation: Judge James Boasberg has ruled that the Washington Post failed to show that it was entitled to attorney's fees for litigation brought by the newspaper to force the Department of State to disclose diplomatic cables warning of safety issues at a laboratory in Wuhan, China, where researchers studied novel coronaviruses. The Post filed a FOIA request for the cables and related records and asked for expedited processing. The agency denied its request for expedited processing and placed the request into the simple processing track "where it would be processed as quickly as possible." The Post filed suit challenging the denial of expedited processing and amending its complaint to include an allegation of failure to respond within the statutory time limit. The State Department answered the suit two weeks later. The State Department suggested to Boasberg that he set a deadline of six weeks for a final response, which he adopted. The State Department provided its final response in five weeks, redacting some information under Exemption 5 (privileges) and Exemption 6 (invasion of privacy). The State Department also posted an earlier cable on its website, which it claimed was not responsive to the Post's request because it was outside the date range of the request. The Post then told Boasberg it would no longer challenge the adequacy of the search. However, the Post then filed a motion for attorney's fees, arguing that its suit caused the agency to disclose the records. Boasberg disagreed. He noted that "here, the analysis begins and ends with eligibility â€" that is, whether the Post has 'substantially prevailed' in this suit." The Post argued that it was eligible for an award because Boasberg's scheduling order constituted a judicial order, making it the prevailing party. Boasberg rejected the claim, noting that "however, the Court here never ordered the government to produce responsive records by a date certain. Rather, it merely ordered State to issue a final response. . .Plaintiff cites no authority involving a routine scheduling order such as the one at issue here, which 'simply forwarded the litigation process.'" The Post also argued that its litigation caused the agency to disclose the records. Again, Boasberg disagreed. He pointed out that "aside from the sequence of events, there is no reason to think that State would have failed to release the April 2018 cable had the Post not filed its lawsuit." He added that "it seems more likely, in fact, that 'the documents would have been processed in the same manner,' with the same result, regardless of whether litigation was filed." He observed that "the Post's argument still boils down to nothing more than timing: State has not begun its work prior to the suit, then the suit was filed, and then State began the process that led to the cable's release. Concluding merely from those events that the lawsuit caused the cable's disclosure is post hoc ergo propter hoc reasoning, and in this context "causation requires more than correlation.'" Boasberg indicated that the Post was not arguing that its suit caused the agency to expedite the processing of its request. He pointed out that "the Circuit has not ruled on whether an agency's speedier release of records can qualify as a 'voluntary or unilateral change in position' sufficient to substantially prevail under the catalyst theory."
Issues: Litigation - Attorney's fees - Prevailing party, Litigation - Attorney's fees - Eligibility - Causal effect

Date Filed	Doc #	Docket Text
2020-04-24	1	COMPLAINT against U.S. DEPARTMENT OF STATE ( Filing fee $ 400 receipt number ADCDC-7058836) filed by WP COMPANY LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Summons to U.S. Department of State, # 5 Summons to Attorney General of the United States, # 6 Summons to United States Attorney for the District of Columbia, # 7 Civil Cover Sheet)(Tobin, Charles) (Entered: 04/24/2020)
2020-04-24	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests identifying corporate parent Nash Holdings LLC by WP COMPANY LLC (Tobin, Charles) (Entered: 04/24/2020)
2020-04-27		Case Assigned to Judge James E. Boasberg. (adh, ) (Entered: 04/27/2020)
2020-04-27	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 04/27/2020)
2020-04-30	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/27/2020. Answer due for ALL FEDERAL DEFENDANTS by 5/27/2020. (Tobin, Charles) (Entered: 04/30/2020)
2020-05-08	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF STATE served on 5/5/2020 (Tobin, Charles) (Entered: 05/08/2020)
2020-05-08	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5-4-2020. (Tobin, Charles) (Entered: 05/08/2020)
2020-05-14	7	AMENDED COMPLAINT against U.S. DEPARTMENT OF STATE filed by WP COMPANY LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Tobin, Charles) (Entered: 05/14/2020)
2020-05-28	8	NOTICE of Appearance by James O. Bickford on behalf of U.S. DEPARTMENT OF STATE (Bickford, James) (Entered: 05/28/2020)
2020-05-28	9	ANSWER to 7 Amended Complaint by U.S. DEPARTMENT OF STATE.(Bickford, James) (Entered: 05/28/2020)
2020-05-29		MINUTE ORDER: The Court ORDERS that the parties shall confer and submit a joint proposed briefing schedule by June 12, 2020. So ORDERED by Judge James E. Boasberg on 5/29/2020. (lcjeb3) (Entered: 05/29/2020)
2020-05-29		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 6/12/2020. (znbn) (Entered: 05/29/2020)
2020-06-12	10	Joint STATUS REPORT by WP COMPANY LLC. (Tobin, Charles) (Entered: 06/12/2020)
2020-06-22		MINUTE ORDER: The Court ADOPTS the parties' 10 Joint Status Report and ORDERS that the following schedule shall govern further proceedings: 1) By July 23, 2020, Defendant shall issue a final response to Plaintiff's FOIA request; 2) No more than seven days after Defendant issues its final response, Plaintiff shall inform Defendant of the scope of itschallenges to the search and/or any withholdings; 3) Defendant shall file its Motion for Summary Judgment by July 31, 2020; 4) Plaintiff shall file its Cross-Motion and Opposition by August 21, 2020; 5) Defendant shall file its Opposition and Reply by September 11, 2020; and 6) Plaintiff shall file its Reply by September 25, 2020. So ORDERED by Judge James E. Boasberg on 6/22/2020. (lcjeb1) (Entered: 06/22/2020)
2020-06-22		Set/Reset Deadlines: Responses due by 7/23/2020. Summary Judgment motions due by 7/31/2020. Response to Motion for Summary Judgment due by 8/21/2020. Cross Motions due by 7/31/2020. Reply to Motion for Summary Judgment due by 9/11/2020. Response to Cross Motions due by 8/21/2020. Reply to Cross Motions due by 9/25/2020. (znbn) (Entered: 06/22/2020)
2020-07-31	11	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Bickford, James) (Entered: 07/31/2020)
2020-08-03		MINUTE ORDER: The Court ADOPTS the parties' 11 Joint Status Report and ORDERS that they shall file a further joint status report by September 1, 2020. So ORDERED by Judge James E. Boasberg on 8/3/2020. (lcjeb3) (Entered: 08/03/2020)
2020-08-03		Set/Reset Deadlines: Joint Status Report due by 9/1/2020. (znbn) (Entered: 08/03/2020)
2020-09-01	12	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Bickford, James) (Entered: 09/01/2020)
2020-09-01		MINUTE ORDER: The Court ADOPTS the parties' 12 Joint Status Report and ORDERS that they shall file a further joint status report by October 1, 2020. So ORDERED by Judge James E. Boasberg on 09/01/2020. (lcjeb3) (Entered: 09/01/2020)
2020-09-01		Set/Reset Deadlines: Joint Status Report due by 10/1/2020. (znbn) (Entered: 09/02/2020)
2020-10-01	13	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Bickford, James) (Entered: 10/01/2020)
2020-10-02		MINUTE ORDER: The Court ADOPTS the parties' 13 Joint Status Report and ORDERS that 1) Plaintiff shall file its motion for fees by October 29, 2020; 2) Defendant shall file its opposition by November 12, 2020; and 3) Plaintiff shall file its reply by November 19, 2020. So ORDERED by Judge James E. Boasberg on 10/02/2020. (lcjeb3) (Entered: 10/02/2020)
2020-10-02		Set/Reset Deadlines: Motion for Fees due by 10/29/2020. Responses due by 11/12/2020. Replies due by 11/19/2020. (znbn) (Entered: 10/02/2020)
2020-10-29	14	MOTION for Attorney Fees by WP COMPANY LLC (Attachments: # 1 Exhibit A to Motion, # 2 Declaration of C. Tobin in Support of Motion, # 3 Exhibit A to Decl. of C. Tobin, # 4 Exhibit B to Decl. of C. Tobin)(Tobin, Charles) (Entered: 10/29/2020)
2020-11-12	15	Consent MOTION for Extension of Time to File Response/Reply as to 14 MOTION for Attorney Fees by U.S. DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Bickford, James) (Entered: 11/12/2020)
2020-11-13		MINUTE ORDER GRANTING Consent 15 Motion for Extension of Time. The Court ORDERS that: (1) Defendant shall file its opposition to Plaintiff's Motion for Attorney Fees by November 13, 2020; and (2) Plaintiff shall file its reply by November 20, 2020. So ORDERED by Judge James E. Boasberg on 11/13/2020. (lcjeb3) (Entered: 11/13/2020)
2020-11-13	16	Memorandum in opposition to re 14 MOTION for Attorney Fees filed by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Declaration of Eric Stein, # 2 Exhibit A -- FOIA Request, # 3 Exhibit B -- Initial Response, # 4 Exhibit C -- Final Response)(Bickford, James) (Entered: 11/13/2020)
2020-11-20	17	REPLY to opposition to motion re 14 MOTION for Attorney Fees filed by WP COMPANY LLC. (Tobin, Charles) (Entered: 11/20/2020)
2020-12-09	18	ORDER: The Court ORDERS that Plaintiff's 14 Motion for Attorney Fees is DENIED. Signed by Judge James E. Boasberg on 12/09/2020. (lcjeb2) (Entered: 12/09/2020)
2020-12-09	19	MEMORANDUM OPINION re 18 Order on Motion for Attorney Fees. Signed by Judge James E. Boasberg on 12/09/2020. (lcjeb2) (Entered: 12/09/2020)
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