USCA Case #12-5267

[NOT YET SCHEDULED FOR ORAL ARGUMENT]

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 12-5267 VERN MCKINLEY, Plaintiff-Appellant, v. FEDERAL HOUSING FINANCE AGENCY, Defendants-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RESPONSE BRIEF FOR THE APPELLEE STUART F. DELERY Principal Assistant Attorney General RONALD C. MACHEN JR. United States Attorney LEONARD SCHAITMAN STEVE FRANK (202) 514-4820 Attorneys, Appellate Staff Civil Division, Room 7245 Department of Justice 950 Pennsylvania Ave.NW Washington, D.C. 20530

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TABLE OF CONTENTS GLOSSARY OF ABBREVIATIONS STATEMENT OF JURISDICTION.. 1 STATEMENT OF THE ISSUE ................................................................. 1 STATEMENT OF THE CASE .................................................................. 1 A. B. Nature of the Case .................................................................. 1 Statement of Facts .................................................................. 2

STANDARD OF REVIEW......................................................................... 6 SUMMARY OF ARGUMENT ................................................................... 6 ARGUMENT ............................................................................................. 9 Introduction ...................................................................................... 9 I. II. PLAINTIFFS ELIGIBILITY FOR ATTORNEYS FEES ............................................................. 10 PLAINTIFF IS NOT ENTITLED TO ATTORNEYS FEES ............................................................. 14 A. The Limited Factual Information Produced in This Litigation Did Not Benefit the Public......................................................... 14 Plaintiffs Limited Interest in Publicly Disseminating the Requested Information Does Not Weigh in his Favor ....................................... 18

B.

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C.

The Reasonableness Factor Does Not Support Plaintiffs Claim of Entitlement .................................................................. 20

III.

PLAINTIFFS REQUEST FOR $15,852.50 IN ATTORNEYS FEES AND COSTS IS UNREASONABLE AND EXCESSIVE................................. 24

CONCLUSION ........................................................................................ 27 CERTIFIED OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A) CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES Page Cases: Beltranena v. U.S. Dep't of State, No. 09-cv-01457, 2011 WL 5022789 (D.D.C. Oct. 21, 2011) .................................................................... 20 Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011).................................................. 6, 9-10 Chesapeake Bay, Found. v. Dept. of Agriculture, 11 F.3d 211 (D. C. Cir. 1993).............................................................................. 21 *Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995)....................................................... 10, 14, 15, 16, 17 Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977)...21 Davy v. CIA, 456 F.3d 162 (D.C. Cir. 2006)14 Davy v. CIA, 550 F.3d 1155 (D.C. Cir. 2008)...18, 19 *Farrar v. Hobby, 506 U.S. 103 (1992) ....................................... 10, 13, 24 Fenster v. Brown, 617 F.2d 740 (D.C. Cir. 1979) ............................ 14, 17 Horsehead Indus. Inc. v. EPA, 999 F.Supp. 59 (D.D.C.1998) ................................................................................... 16 * Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363 (D.C. Cir. 2006)..................................................... 8, 24 * Cases chiefly relied upon are marked with an asterisk.

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Klamath Water Users Protective Ass'n v. U.S. Department of the Interior, 18 Fed.Appx. 473 (9th Cir. 2001) ................................................................................ 18 Maydak v. U.S. Dep't of Justice, 579 F. Supp. 2d 105 (D.D.C. 2008) .................................................................................. 20 McKinley v. Federal Housing Finance Agency, 789 F. Supp.2d 85 (D.D.C. 2011)...................................................... 3 Mobley v. DHS, No. 11-2074, 2012 WL 6103000 (D.D.C. Dec. 10, 2012) .............................................................. 12, 21 Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704 (D.C. Cir. 1977)............................................... 9, 21, 22 Nat'l Ass'n of Concerned Veterans v. U.S. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982)............................................................................... 25 Pac Energy Inst. v. IRS, No. 94-36172, 1996 WL 14244 (9th Cir. Jan. 16, 1996) .................................................................. 13 Tax Analysts v. Dept. of Justice, 965 F.2d 1092 (D.C. Cir. 1992)..................................................................................... 17 Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989) ........................................................................ 13 Union of Concerned Scientists v. NRC, 824 F.2d 1219 (D.C. Cir. 1987).......................................................................... 12-13

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Statutes: Freedom of Information Act: 5 U.S.C. 552(a)(4)(B) .................................................................... 1 5 U.S.C. 552(a)(4)(E) ..................................................................... 5 5 U.S.C. 552(a)(4)(E)(i) ................................................................. 9 Housing and Economic Recovery Act of 2008: 12 U.S.C. 4501 et seq. ................................................................. 2 12 U.S.C. 4511(b) ........................................................................... 2 12 U.S.C. 4517 ............................................................................. 15 28 U.S.C. 1291 ...................................................................................... 1 Rules: Fed. R. App. P. 4(a)(1)(B) ........................................................................ 1

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GLOSSARY OF ABBREVIATIONS Fannie Mae Freddie Mac FOIA JA Federal National Mortgage Association Federal Home Loan Mortgage Corporation Freedom of Information Act Joint Appendix

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STATEMENT OF JURISDICTION Plaintiff invoked the jurisdiction of the district court under the Freedom of Information Act, 5 U.S.C. 552(a)(4)(B). The district court entered final judgment, denying plaintiffs motion for attorneys fees, disposing of all claims as to all parties, on June 27, 2012. Joint Appendix (JA) 34. Plaintiff filed a timely notice of appeal on August 20, 2012. Id. at 40. See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. 1291. STATEMENT OF THE ISSUE Whether the district court abused its discretion in denying plaintiffs motion for attorneys fees where plaintiff was not entitled to fees. STATEMENT OF THE CASE A. Nature of the Case. This action arises out of a Freedom of Information Act (FOIA) request that plaintiff submitted to the Federal Housing Finance Agency (FHFA), seeking documents related to the September 7, 2008 announcement by FHFA and the U.S. Department of the Treasury that FHFA had decided to place the Federal National Mortgage Association

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(Fannie Mae) and the Federal National Home Loan Mortgage Corporation (Freddie Mac) into conservatorship. FHFA found three responsive documents, which it withheld under FOIA Exemption 5 on the basis of, inter alia, the deliberative process privilege. Plaintiff filed suit and pursued disclosure of two of the three documents. In response to an order of the district court on August 26, 2011, a small portion of segregable factual information was released to plaintiff. Otherwise, the district court determined that the agency had properly withheld the bulk of the documents under Exemption 5 and granted FHFAs motion for summary judgment. Plaintiff then sought $15,000.00 in fees on the basis of the limited factual material released as segregable. The district court denied plaintiffs motion for fees and plaintiff pursued this appeal. B. Statement of Facts. FHFA was created in July 2008 by the Housing and Economic Recovery Act of 2008, 12 U.S.C. 4501 et seq. Among other things, FHFA serves as the primary regulatory and oversight authority for Fannie Mae and Freddie Mac. See 12 U.S.C. 4511(b). In September 2008, FHFA placed these enterprises in conservatorship, with the goal
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of stabilizing their operations and finances. See McKinley v. Federal Housing Finance Agency, 789 F. Supp.2d 85, 86 (D.D.C. 2011). In May 2010, plaintiff submitted his FOIA request for documents relating to FHFA and Treasurys decision to place Fannie Mae and Freddie Mac into conservatorship. J.A. 6, 5. Plaintiff specifically sought any and all communications and records concerning or relating to the assessment of an adverse impact on systemic risk in addressing Fannie Mae and Freddie Mac, and in particular how the FHFA and the Department of the Treasury determined that conservatorship was the preferred option to avoid any systemic risk of placing Fannie Mae and Freddie Mac into receivership. Id. FHFA notified plaintiff that it had searched the agencys files and records and located three documents responsive to his request. The agency advised plaintiff that the three documents were being withheld in their entirety on the basis of the deliberative process privilege and attorney work product doctrine under FOIA Exemption 5. See 789 F. Supp.2d at 87. Plaintiff subsequently filed this lawsuit claiming that FHFA had violated FOIA by failing to produce any and all non-exempt records
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responsive to Plaintiffs FOIA request within the required time limit. JA 7, 15. FHFA moved for summary judgment, contending that it had conducted a reasonable search for responsive records and properly withheld the documents at issue pursuant to FOIA Exemption 5. Clerks Record (CR) 9-1. Plaintiff did not challenge the sufficiency of FHFAs search, nor did he contest FHFAs withholding of the first of three responsive documents. CR 15 at 3. After reviewing FHFAs Vaughn index, the district court concluded that the documents are protected by the deliberative-process privilege. Id. at 5. The court then conducted an in camera review and held that the documents were not protected by the attorney work product privilege and ordered FHFA to disclose any portions of those documents that were reasonably segregable from the material therein that is protected by the deliberative-process privilege. CR 15 at 4. In response to the courts order, FHFA conducted a segregability analysis and released all reasonably segregable non-privileged information from the two contested documents. The released factual portions of the documents consist primarily of pages setting forth the

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provisions of the Housing and Economic Recovery Act of 2008, and to the legal authority FHFA would possess as a conservator. CR 18-1. After FHFA produced this material, plaintiff again requested the court to conduct an in camera review and order the government to produce any additional segregable material. The court then conducted a second in camera review and concluded that FHFA has met its burden and had appropriately disclosed all factual content that it could reasonably segregate and that is not inextricably intertwined with exempted material. CR 21 at 4. Accordingly, the court granted summary judgment in FHFAs favor. Id. at 5. Plaintiff then filed a motion seeking attorneys fees under 5 U.S.C. 552(a)(4)(E), which provides that in a FOIA action, 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 substantially prevailed. CR 24. The district court denied plaintiffs motion, holding that plaintiff was not entitled to such fees. CR 27. This appeal followed.

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STANDARD OF REVIEW This Court reviews the district courts decision denying plaintiffs motion for attorneys fees for abuse of discretion. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011). SUMMARY OF ARGUMENT In order to be awarded fees in a FOIA case, a plaintiff must demonstrate both that he is eligible and entitled to fees. To be eligible for fees, a plaintiff must establish that he substantially prevailed in this litigation. Here, the district court twice denied plaintiffs motions for relief on the merits and eventually granted summary judgment in favor of the government. Assuming arguendo that plaintiff surpassed the eligibility threshold, he still is not entitled to fees because the four-factor test for entitlement strongly counsels against the award of fees in this case. In determining entitlement to fees, a court must consider: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiffs interest in the records; and (4) whether the government has a reasonable basis for withholding the

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requested information. The district court did not abuse its discretion in finding that plaintiff is not entitled to fees in this case. The public benefit derived from the meager disclosure in this case does not favor the award of fees. The bare bones factual information disclosed here does not add in any meaningful way to the fund of information publicly available concerning the governments decision to place Fannie Mae and Freddie Mac into conservatorship. The few pages released simply describe the contents of a federal statute and general characteristics of a consent order or conservatorship, which is public information readily available in law libraries and from multiple other sources. The second and third factors - - plaintiffs commercial benefit and nature of plaintiffs interest in the information do not advance plaintiffs cause. Plaintiff concedes that he formerly worked for the federal government and now works as a consultant, legal advisor, and regulatory policy expert. Plaintiff plainly has a commercial interest in the information requested in this case so as to provide a private incentive to seek disclosure without government funding.

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The final factor asks the court to consider whether the government had a reasonable or colorable basis for withholding documents and, most critically, whether the government was recalcitrant or obdurate in opposing a valid claim. The governments response to this lawsuit was reasonable and hardly can be characterized as obdurate. Indeed, plaintiff concedes that he does not dispute that FHFA had a colorable or reasonable basis for withholding information. Plaintiffs Opening Brief (Pl. Br.) at 18-19 (emphasis added). Even if the Court were to conclude that plaintiff is entitled to attorneys fees, which he is not, plaintiff is not entitled to the $15,000.00 requested. A plaintiffs overall success on the merits also must be considered in determining the reasonableness of a fee award. Judicial Watch, Inc. v. U.S. Dept of Commerce, 470 F.3d 363, 369 (D.C. Cir. 2006). The overall history of this litigation, and its meager results, should be taken into account in reaching the conclusion that any award of fees here would not be reasonable under the circumstances.

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ARGUMENT Introduction The FOIA permits a court to assess attorneys fees and other litigation costs where a plaintiff has substantially prevailed. See 5 U.S.C. 552(a)(4)(E)(i) ([A] court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case * * * in which the complainant has substantially prevailed). An award of fees and costs was not enacted to provide a reward for any litigant who successfully forces the government to disclose information it wished to withhold. Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711 (D.C. Cir. 1977). Rather, the provision had a more limited purpose to remove the incentive for administrative resistance to disclosure requests based not on the merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation. Id. A plaintiff seeking fees must satisfy both parts of a two-part test and demonstrate that he is first eligible to receive fees and second that he is entitled to do so. See Brayton v. Office of U.S. Trade
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Representative, 641 F.3d 521, 524 (D.C. Cir.2011). The eligibility prong asks whether a plaintiff has substantially prevailed and thus may receive fees. If so, the court proceeds to the entitlement prong and considers a variety of factors to determine whether plaintiff should receive fees. Id. (emphasis in original). The second of the two-part test, whether plaintiff is entitled to fees, is based on four, non-exhaustive factors including: the public benefit derived from the case, the commercial benefit to the plaintiff, the nature of plaintiffs interest in the records, and whether the government has a reasonable basis for withholding the requested information. See Cotton v. Heyman, 63 F.3d 1115, 1117 (D.C. Cir. 1995). Further, a plaintiff's overall success on the merits also must be considered in determining the reasonableness of a fee award. See Farrar v. Hobby, 506 U.S. 103, 114 (1992). In this action, the district court did not abuse its discretion in holding that these factors counsel against an award of fees. I. PLAINTIFFS ELIGIBILITY FOR ATTORNEYS FEES. In order to be eligible for attorneys fees, plaintiff must establish that he substantially prevailed in this litigation. The district court
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acknowledged that the government turn[ed] over * * * pages (or sections of documents) pursuant to a court order, but the court stated that it has serious doubts as to whether this amounts to substantially prevailing. JA 37. It is not difficult to see why the district court had

such doubts since the court twice denied plaintiffs motions for relief on the merits and eventually granted summary judgment in favor of the government. First, the court denied plaintiffs motion for summary judgment and held that the requested documents were protected by the deliberative process privilege. CR 15. Second, after the court had ordered the government to conduct a segregability analysis and release segregable, factual material, plaintiff challenged the governments analysis, but the district court, after conducting a second in camera review, upheld the governments actions and granted summary judgment in the governments favor. CR 21 at 4-5. Plaintiff seeks to snatch victory from two defeats in the court below by arguing that he substantially prevailed because the court ordered FHFA to identify and disclose any portions of the requested documents that are reasonably segregable from material that is protected by the deliberative process privilege. See Plaintiffs Opening
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Brief (Pl. Br.) at 13. This resulted in the disclosure of scant factual material. See CR 18-1. Plaintiff maintains that his overall substantial lack of success is irrelevant in determining whether he substantially prevailed in this litigation. See Pl. Br. at 12-13. Instead, plaintiff contends that to be eligible for an award of attorneys fees, a FOIA requester need only show that he obtained some court-ordered relief, regardless of how insubstantial it might be. Id. Given the meager relief granted plaintiff in this case, the district court was right in being doubtful whether plaintiff had substantially prevailed. In Mobley v. DHS, No. 11-2074, 2012 WL 6103000 (D.D.C. Dec. 10, 2012), the court recently emphasized that [a] FOIA case must be viewed in its totality in determining whether a plaintiff has substantially prevailed. Id. at *5. The Mobley court concluded, if a plaintiff obtains only one small piece of the relief it seeks in its complaint, as the plaintiffs did here, calling such prevalence substantial is clearly incorrect. To give meaning to the language used in the statute, a FOIA plaintiff must obtain the essential elements of the relief that it seeks in its complaint in order to substantially prevail, which the plaintiffs did not do here. Id. See Union of Concerned
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Scientists v. NRC, 824 F.2d 1219, 1226 (D.C. Cir. 1987) (in determining eligibility for fees, [a] court must assess both the substance and quality of the information released); Pac Energy Inst. v. IRS, No. 94-36172, 1996 WL 14244, at * 1 (9th Cir. Jan. 16, 1996) (plaintiff did not substantially prevail because it obtained only five of 80 documents it sought, and none that was particularly noteworthy). However, even assuming arguendo that plaintiff satisfied the threshold for eligibility, this does not end the inquiry. Plaintiff must also satisfy the second part of the fees test and demonstrate that he is entitled to fees. As the district court correctly held, and as we discuss further below, plaintiff has failed to meet this test. Moreover, a plaintiff's overall success on the merits also must be considered in determining the reasonableness of a fee award. See Farrar v. Hobby, 506 U.S. 103, 114 (1992 (the most critical factor in determining the reasonableness of a fee award is the degree of success obtained) (citation omitted). See also Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989). Plaintiffs relatively meager success here should be considered and weighed against him in the overall fee analysis.
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II. PLAINTIFF IS NOT ENTITLED TO ATTORNEYS FEES. Plaintiff failed to satisfy the second part of the fees test and, therefore, he is not entitled to fees in this case. As discussed above, in order to make such a determination, the court must consider: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiffs interest in the records; and (4) whether the government has a reasonable basis for withholding the requested information. See Cotton, 63 F.3d at 1117. The Court reviews the district courts fee entitlement determination for abuse of discretion. See Davy v. CIA, 456 F.3d 162, 167 (D.C. Cir. 2006). The district court did not abuse its discretion in finding that plaintiff is not entitled to fees in this case. A, The Limited Factual Information Produced in This Litigation Did Not Benefit the Public. While any response to a FOIA request could theoretically benefit the public by vaguely adding to the publics knowledge about the operation of government in some minor or technical way, such a broad definition of public benefit is not what Congress had it mind when it included this factor in the statutory definition. See Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979). Rather, the public benefit factor
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should only weigh in favor of an award where complainants victory is likely to add to the fund of information that citizens may use in making vital political choices. Cotton, 63 F.3d at 1120. In making this determination, a court should consider whether the information is already publicly available. Id. The bare bones factual information disclosed here does not add in any meaningful way to the fund of information publicly available concerning the governments decision to place Fannie Mae and Freddie Mac into conservatorship. The few pages released here simply describe the contents of a federal statute and general characteristics of a consent order or conservatorship, which is public information readily available in law libraries and from multiple other sources. See CR 18-1; see also 12 U.S.C. 4517. Plaintiff expounds at length why the general subject matter of his request, i.e., the governments decision to place the entities at issue in conservatorship, is a matter of public interest. See Pl. Br. at 4-6. Interestingly enough, nowhere in this section does plaintiff cite to the disclosed factual material itself as a source of information regarding that subject. Likewise, plaintiffs references to his discussion of the
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governments consideration of conservatorship or receivership options, both on television and in print media, apparently were derived from public sources other than the scant information obtained in this case. See Pl. Br. at 3-4. For example, plaintiffs comments on MSNBC explicitly discuss documents obtained separate and apart from this litigation. See http://www.youtube.com/watch?v=nyYkci_tLAg at 7:127:28. Likewise, the Wall Street Journal article referenced by plaintiff, cites no FHFA documents, but instead a book written by Andrew Ross Sorkin, Too Big to Fail, as the source for facts surrounding the governments decision to enter into a conservatorship of Fannie Mae and Freddie Mac. However, it is settled that, in assessing the public benefit derived from the case, the Court evaluate[s] the specific documents at issue in the case at hand. Cotton, 63 F.3d at 1120 (emphasis added). See Horsehead Indus. Inc. v. EPA, 999 F.Supp. 59, 68 (D.D.C.1998) (it is the benefit that derives from the litigation, not simply the request that is considered). Plaintiff gives short shrift to the actual issue before the Court - how the specific documents released here adds to the publicly available information regarding the decision to place Fannie Mae and Freddie
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Mac into conservatorship. Plaintiff points to a few nebulous facts made public by the disclosed material, including, not surprisingly, that the government conduct[ed] an analysis before entering into a conservatorship and that, in deciding to enter into a conservatorship, FHFA took into account public perception, as well as policy, operational, and logistical considerations. See Pl. Br. at 7-8. These revelations are not particularly enlightening and not likely to add to the fund of information that citizens may use in making vital political choices. See Cotton, 63 F.3d at 1120. The district court reasonably found that plaintiff has failed to explain how the minimal information derived assists the decision making of the public in any meaningful way. JA 37. The court went on to state that it was not persuaded that the scant material made publicly available pursuant to this multiyear FOIA litigation yielded any discernible public benefit. Id. The district court did not abuse its discretion in reaching this conclusion which is consistent with settled law. See Fenster, 617 F.2d at 744 (disclosure of the Defense Contract Audit Manual was not of sufficient public benefit to warrant an award of fees; Tax Analysts v. Dept. of Justice, 965 F.2d 1092, 1097 (D.C. Cir. 1992)) (holding that disclosures
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of tax decisions did not provide sufficient public benefit to justify an award of fees); Klamath Water Users Protective Ass'n v. U.S. Department of the Interior, 18 Fed.Appx. 473, 475 (9th Cir. 2001) (disclosure of communications by Bureau of Indian Affairs concerning water allocation plan has marginal public interest and little relevance to the making of political choices by citizens). In short, plaintiff failed to satisfy the important public benefit factor of the entitlement test. B. Plaintiffs Limited Interest in Publicly Disseminating the Requested Information Does Not Weigh in his Favor. Considering the remaining factors in the entitlement test does not advance plaintiffs cause. The second and third factors - - plaintiffs commercial benefit and nature of plaintiffs interest in the information - are closely related and often considered together and assess whether a plaintiff has sufficient private incentive to seek disclosure without attorneys fees. See Davy v. C.I.A., 550 F.3d 1155, 1160 (D.C. Cir. 2008). Plaintiff concedes that he formerly worked for the federal government and now works as a consultant, legal advisor, and regulatory policy expert. Plaintiff also acknowledges that he works closely with Judicial Watch, in litigating FOIA lawsuits. See Pl. Br. at 3-4. Thus, plaintiff plainly has a commercial interest in the information
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requested in this case so as to provide a private incentive to seek disclosure without the government financing his litigation. Plaintiff analogizes his interest to the plaintiff in Davy, who was interested in private gain associated with writing a book, but in the course of doing so, also had an interest in disseminating information to the public. Unlike the plaintiff in Davy who was like a journalist who uses [his] editorial skills to turn the raw materials into a distinct work and distributes that work to an audience (see 550 F.3d at 1161-62), plaintiff here, who is neither a journalist nor a non-profit organization, made an indiscriminate internet posting of all pleadings in this case on his own web site. Plaintiff provided no analysis or specific references to the contents of the documents or why they were significant to the publics understanding of the governments decision to place the enterprises into conservatorship. In short, plaintiff had a commercial interest in the information requested and a private incentive to seek the records. Thus, these factors should not favor plaintiff. At a minimum, these factors should not be given any weight in advancing plaintiffs cause, as the district court concluded. See JA 38 (the court finds that these factors, on their
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own, neither strongly support an award of fees and costs nor counsel against it. * * * when viewed in relation to the lack of a quantifiable public benefit, the factors do little to advance plaintiffs position). C. The Reasonableness Factor Does Not Support Plaintiffs Claim of Entitlement. The final factor asks the court to consider whether the government had a reasonable or colorable basis for withholding documents and, most critically, whether the government was recalcitrant or obdurate in opposing a valid claim. See Davy, 550 F.3d at 1162. There must be some unreasonable action taken by the government in responding to plaintiffs request; otherwise, plaintiff has not satisfied th[is] fourth element * * * [which] may foreclose a claim for attorneys fees or costs. See, e.g., Maydak v. U.S. Dept of Justice, 579 F. Supp. 2d 105, 108-09 (D.D.C. 2008) ([a]lthough the plaintiff obtained two orders compelling the release of BOP records, the BOP rightly asserts that the orders resulted from its inability to satisfy its evidentiary burden with respect to reasonably asserted exemptions, rather than from evidence of agency recalcitrance or bad faith). See also Beltranena v. U.S. Dept of State, No. 09-cv-01457, 2011 WL 5022789 at *11 (D.D.C. Oct. 21, 2011) (where the agency has performed
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adequate searches for [responsive] documents, properly applied exemptions, and presented evidence of carefully conducted segregabilty analysis, an award of attorneys fees is inappropriate); Mobley, 2011 WL 6257183 at *5 (where the agency has relied on reasonable legal interpretations and acted reasonably throughout this case, this factor should weigh in the governments favor). In considering this factor, the government need only have a colorable basis in law for the court to consider the reasonable basis in law factor in determining a FOIA plaintiff's entitlement to attorney's fees. Chesapeake Bay Found. v. Dept. of Agriculture, 11 F.3d 211, 216 (D. C. Cir. 1993) (quoting Nationwide Bldg. Maintenance, 559 F.2d at 712 n. 34). See also Cuneo v. Rumsfeld, 553 F.2d 1360, 1366 (D.C.Cir.1977) ([w]hat is required is a showing that the government had a reasonable basis in law for [its position] and that it had not been recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.). The governments response to this lawsuit was reasonable and hardly can be characterized as obdurate. The FHFA responded to plaintiffs revised FOIA request within a month, performed adequate searches for responsive documents which
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plaintiff did not challenge, and reasonably withheld all three responsive documents under Exemption 5. This was not a case where defendant sought to procrastinate or to resist disclosure based on a meritless exemption claim. See Nationwide Bldg Maint., Inc., 559 F.2d at 711. The government had a reasonable or colorable basis for withholding the two contested documents as protected by the deliberative process privilege and attorney work product doctrine. Although the attorney work product claim was not ultimately upheld, the district court itself acknowledged that the assertion of the work product privilege was not wholly untenable given the documents mention of the possibility for future litigation. JA 38. The court went on to emphasize that [w]hile this justification was not ultimately found to be the determinative force behind the creation of the documents, it was not unreasonable to assert the privilege as a basis for withholding the information. Id. at 38-39. Moreover, with the exception of scant factual material, the court upheld the governments deliberative process privilege claim. And the court further confirmed the reasonableness of the governments segregability analysis and, ultimately, granted summary judgment in
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favor of the government. Given the history of this litigation, there is no question but that the governments position was colorable and did not come close to the kind of obdurate posturing that would warrant consideration of this factor in plaintiffs favor. Quite the contrary, the governments reasonable, and to the large extent, successful position in this case, requires that this factor favor the government and be added to the list of factors mandating that plaintiff be denied fees in this case. Indeed, it is noteworthy that plaintiff concedes that he does not dispute that FHFA had a colorable or reasonable basis for withholding information. Pl. Br. at 18-19 (emphasis added). Plaintiff merely objects that the district court erroneously gave the fourth factor too much weigh in its analysis. Id. at 19. This is incorrect. The court rightly considered all four factors and concluded that the first and fourth factors weighed against the award of fees, while the closelyrelated second and third factors, while neither strongly supporting nor counseling against an award, did little to advance plaintiffs cause. The court performed its analysis of the four factors properly and rightly concluded that plaintiff was not entitled to fees under the four-part test.

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III. PLAINTIFFS REQUEST FOR $15,852.50 IN ATTORNEYS FEES AND COSTS IS UNREASONABLE AND EXCESSIVE. Even if the Court were to conclude that plaintiff is entitled to attorneys fees, which he is not, plaintiff is not entitled to the $15,852.50 requested. The degree of plaintiffs success is the most critical factor in determining the reasonableness of a fee award. Farrar, 506 U.S. at 114 (citation omitted) ; see also Judicial Watch, Inc. v. U.S. Dept of Commerce, 470 F.3d 363, 369 (D.C. Cir. 2006) ([a] plaintiffs overall success on the merits also must be considered in determining the reasonableness of a fee award.). We discussed at length above that plaintiffs success in this case was extremely limited and the government ultimately prevailed. The overall history of this litigation, and its meager results, should be taken into account in reaching the conclusion that any award of fees here would not be reasonable under the circumstances. At a minimum, plaintiffs limited results should be accounted for in the calculation of any fees awarded. It would be unreasonable to finance plaintiffs entire litigation here for the bare factual material, primarily summarizing publically-available facts, he received. This
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Court has emphasized that [f]ees are not recoverable for nonproductive time nor * * * for time expended on issues on which plaintiff did not ultimately prevail. Natl Assn of Concerned Veterans v. U.S. Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). The fee application should therefore indicate whether nonproductive time or time expended on unsuccessful claims was excluded and, if time was excluded, the nature of the work and the number of hours involved should be stated. Id. at 1327-28. Plaintiffs fee application fails to distinguish between his successful and unsuccessful claims, and accordingly fails to limit his fees claim to those fees that may be properly allowed. Instead, plaintiff seeks to finance his entire litigation from the public treasury without any disallowances for his unsuccessful crossmotion for summary judgment and the Courts ultimate decision granting summary judgment in favor of FHFA. Plaintiffs motion sought attorneys fees for time reviewing the draft Vaughn index prior to deciding to file a dispositive motion; time spent drafting plaintiffs unsuccessful argument that the documents in question were not covered by the deliberative-process privilege; and time spent preparing a reply

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brief asserting that same unsuccessful argument. See JA 29. Plaintiff cannot recover fees for any of those activities. Moreover, plaintiff did not explicitly move the court for the segregability analysis which resulted in the release of the limited factual material here. Instead, in his cross-motion for summary judgment (which was denied), in describing the applicable law, plaintiff merely recited in one paragraph boilerplate language that all nonexempt material [must be] segregated and disclosed. CR 11-1-5. Subsequently, the district court sua sponte in its August 26, 2011 order determined that the government should conduct a segregability analysis and disclose non-exempt material. CR 17-3. In short, the award of any fees in this case is neither reasonable nor warranted. At most, plaintiff may be entitled to fees for $855.00 for the hours spent drafting his complaint and $350.00 for the filing fee for the complaint. In addition, plaintiff may be entitled to fees for the time spent drafting the single paragraph in his summary judgment motion describing the requisite segregability analysis, surely a de minimis amount.

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CONCLUSION For the foregoing reasons, the judgment of the district court should be affirmed. Respectfully submitted, STUART F. DELERY Principal Assistant Attorney General RONALD C. MACHEN JR. United States Attorney LEONARD SCHAITMAN STEVE FRANK (202) 514-4820 Attorneys, Appellate Staff Civil Division, Room 7245 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530

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CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A) I hereby certify that this brief complies with the requirements of Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Century Schoolbook, a proportionally spaced font. I further certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,000 words, excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii), according to the count of Microsoft Word.

/s/ Steve Frank STEVE FRANK

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CERTIFICATE OF SERVICE I hereby certify that on February 8, 2013, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit by using the appellate CM/ECF system. I further certify that I will cause eight (8) paper copies of this brief to be filed with the Court within two business days. The participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.

/S/ STEVE FRANK STEVE FRANK

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