Huddleston v. Federal Bureau of Investigation

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

BRIAN HUDDLESTON,

Plaintiff,

v.

FEDERAL BUREAU OF INVESTIGATION
and UNITED STATES DEPARTMENT OF
JUSTICE,

Defendants.

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Civil Action No. 4:20-cv-447
Judge Mazzant

MEMORANDUM OPINION AND ORDER

Pending before the Court are Plaintiff’s Renewed Motion for Interim Payment of Costs and
Attorney Fees (Dkt. #143) and Plaintiff’s Supplemental Motion for Interim Payment of Costs and
Attorney Fees (Dkt. #165). Having considered the motions and the relevant pleadings, the Court
finds that both motions should be DENIED without prejudice.
BACKGROUND

This Memorandum Opinion and Order arises in the context of Freedom of Information
Act (“FOIA”) litigation between Plaintiff Brian Huddleston (“Huddleston”) and Defendants
Federal Bureau of Investigation (the “FBI”) and the United States Department of Justice (the
“DOJ,” collectively, the “Government”). The facts of this FOIA case have been more fully set
forth in the Court’s Memorandum Opinion and Order from September 29, 2022 (Dkt. #70) (the
“2022 Order”), the Court’s Memorandum Opinion and Order from November 28, 2023
(Dkt. #107) (the “2023 Order”), and the Court’s Memorandum Opinion and Order from August
15, 2024 (Dkt. # 176) (the “2024 Order”).
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In 2017, Huddleston’s counsel of record, Ty Clevenger (“Clevenger”), submitted a FOIA
request to the FBI seeking information on Seth Rich’s involvement in the 2016 Democratic
National Committee email leaks. Clevenger v. U.S. Dep’t of Just., No. 1:18-CV-1568, 2020 WL
1846565 (E.D.N.Y. Apr. 3, 2020). By letter dated September 19, 2017, the FBI responded to
Clevenger’s request, stating the FBI had conducted a search of its central database but was unable
to locate any responsive main file records. Id. at *7. Clevenger then brought suit against the
Government in the Eastern District of New York in a FOIA action (the “New York Case”).
Subsequently, the New York district court granted summary judgment in favor of the Government
and dismissed the New York Case. Id. at *20.
On April 9, 2020, Huddleston submitted his first FOIA request to the FBI that, among
other information, requested all records pertaining to Seth Rich (Dkt. #3-1). On June 1, 2020,
before the Government responded to Huddleston’s first FOIA request, Huddleston filed the
present action against the Government (Dkt. #1).
1
Then, on June 1 and 5, 2020, Huddleston
submitted two additional FOIA requests, again seeking information related to Seth Rich (Dkt. #2
¶¶ 7, 8). By letter dated June 19, 2020, the Government acknowledged receipt of Huddleston’s
first FOIA request (Dkt. #39-1 ¶ 11). On April 8, 2021, the Government asserted that it had found
over 20,000 pages of documents that were potentially responsive to Huddleston’s FOIA requests
(Dkt. #21 at p. 2).
2

On September 29, 2022, the Court issued the 2022 Order, granting partial summary
judgment in favor of both the Government and Huddleston (Dkt. #70). The Court ordered the

1
Due to the COVID-19 Pandemic, the FBI’s FOIA program experienced significant operational slowdowns between
March 17, 2020 and June 8, 2020 (Dkt. #39-1 ¶ 9).
2
The Government has not provided an explanation for why the FBI did not release responsive documents to
Huddleston until April 2021.
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Government to “produce the information it possesses related to Seth Rich’s laptop and responsive
to Plaintiff’s FOIA requests” (Dkt. #70 at p. 53).
On November 28, 2023, the Court issued the 2023 Order, reconsidering and clarifying the
2022 Order (Dkt. #136). The Court ordered the Government to produce a Vaughn index
addressing the information it possesses on Seth Rich’s work laptop, Seth Rich’s personal laptop, a
DVD, and a tape drive that is responsive to Huddleston’s FOIA requests. (Dkt. #136 at pp. 24–
25).
On August 15, 2024, the Court issued the 2024 Order, denying a motion for summary
judgment belonging to the Government (Dkt. # 176). The Court ordered that the Government shall
conduct and complete “a document-by-document review of the of the information it possesses on
the compact disk containing images of Seth Rich’s personal laptop, Seth Rich’s work laptop, the
DVD, and the tape drive that is responsive to Plaintiff’s FOIA requests” by February 7, 2025
(Dkt. # 176 at p. 6 ). Further, the Court ordered that the Government shall:
either (1) produce Vaughn indexes addressing the information it possesses on the
compact disk containing images of Seth Rich’s personal laptop, Seth Rich’s work
laptop, the DVD, and the tape drive that is responsive to Plaintiff’s FOIA requests
by February 7, 2025; or (2) file a motion for summary judgment regarding the
information it possesses on the compact disk containing images of Seth Rich’s
personal laptop, Seth Rich’s work laptop, the DVD, and the tape drive that is
responsive to Plaintiff’s FOIA requests by February 7, 2025.

(Dkt. # 176 at p. 7 ). The Court previously denied two of Huddleston’s motions for interim fees
(Dkt. #107). Huddleston claims that his counsel accrued $115,581.65 in costs and attorneys’ fees
as of February 2, 2023 (Dkt. #96).
On January 12, 2024, Huddleston filed Plaintiff’s Renewed Motion for Interim Payment of
Costs and Attorney Fees (Dkt. #143). Huddleston informs the Court that his counsel has accrued
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an additional $48,650.00 in attorneys’ fees and an additional $70.91 in expenses for a total of
$164,302.56 (Dkt. #143). Further, Huddleston “incorporated . . . by reference” his two earlier
motions for interim attorneys’ fees and costs (Dkt. #143 at p. 1). On January 26, 2024, the
Government filed its response (Dkt. #145). On January 29, 2024, Huddleston filed his reply
(Dkt. #146). On February 5, 2024, the Government filed its sur-reply (Dkt. #147).
On July 8, 2024, Huddleston filed Plaintiff’s Supplemental Motion for Interim Payment of
Costs and Attorney Fees (Dkt. #165). Huddleston informs the Court that his counsel has accrued
an additional $23,700.00 in attorneys’ fees and an additional $8.95 in expenses for a total of
$188.011.51 (Dkt. #165). On July 29, 2024, the Government filed its response (Dkt. #170).
LEGAL STANDARD

5 U.S.C. § 552(a)(4)(E) governs when courts may assess against the United States
reasonable attorneys’ fees and costs in FOIA litigation:
(i) 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.

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if
the complainant has obtained relief through either--
(I) a judicial order, or an enforceable written agreement or consent decree;
or
(II) a voluntary or unilateral change in position by the agency, if the
complainant's claim is not insubstantial.

5 U.S.C. § 552(a)(4)(E). Fifth Circuit has not directly answered the threshold question of whether
it allows interim fees in FOIA litigation (Dkt. #107 at p. 2). However, the Court is aware of one
district court in this circuit that has decided that a plaintiff may receive interim fees in a FOIA
Action. Claudio v. Social Sec. Admin., No. Civ. A. H-98-1911, 2000 WL 33379041, at *9–11 (S.D.
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Tex. 2000) (“The court may assess an interim award of attorneys' fees for a case in which the
complainant has ‘substantially prevailed.’”).
3

Assuming that courts in the Fifth Circuit may award interim attorneys’ fees and costs,
courts conduct a two-part analysis. First, courts consider 5 U.S.C. § 552(a)(4)(E) and decides
whether the FOIA requester has satisfied the fee eligibility prong, asking the question of whether
the current litigation supports a finding that he or she has “substantially prevailed.” See Batton v.
I.R.S., 718 F.3d 522, 525 (5th Cir. 2013). During this analysis, the courts consider whether to allow
interim fees based upon the specific language used in 5 U.S.C. § 552(a)(4)(E). Second, courts then
consider the requirement of fee entitlement, asking whether the FOIA requester should receive
fees. See id. If the Court reaches this step of the analysis, the Court must decide whether to adopt
the test used by the district courts in California and Washington D.C., and if so, whether
Huddleston has sufficiently satisfied the relevant factors. See Allen v. Fed. Bureau of Investigation,
716 F. Supp. 667, 672 (D.D.C. 1988) (citing Powell v. U.S. Dep’t of Just., 569 F. Supp. 1192, 1200
(N.D. Cal. 1983)).
4

3
The Court notes that another case out of the Southern District of Texas, Longoria v. Johnson, tangentially touched
on this matter, as it was disputed whether the FOIA litigation had concluded at the time of requesting attorneys’ fees.
No. 1:15-CV-055, 2016 WL 11795789, at *6 (S.D. Tex. Mar. 22, 2016). In Longoria, the district court pointed out that
one of the parties stated the following rule in its briefing: “An award of interim attorney[s’] fees under FOIA requires
a showing beyond the threshold ‘substantially prevailed’ requirement and a successful showing on the Batton factors
articulated above.” Id. However, the Longoria court did not have to decide the question of whether it will allow interim
fees in a FOIA action and what the relevant rule would be because it ultimately decided that that the litigation was
concluded with respect to everything except attorneys’ fees. Id.
4
The relevant four factors are: (1) the degree of hardship which delaying a fee award until the litigation is finally
concluded would work on the FOIA requester and his or her counsel; (2) whether there is unreasonable delay on the
agency’s part; (3) the length of time the case has been pending prior to the motion; and (4) the period of time likely to
be required before the litigation is concluded. Id.
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ANALYSIS

The Court resolves Huddleston’s present motions without reaching the question whether
a court may award interim attorneys’ fees and costs during a FOIA action. In the interests of
judicial efficiency, the Court only analyzes the requirement of whether Huddleston has
substantially prevailed because that issue is conclusive. However, the Court analyzes both potential
means by which a party may substantially prevail.
To substantially prevail, “the complainant in a FOIA action must obtain relief either by
(1) ‘judicial order, or an enforceable written agreement or consent decree’ or (2) ‘a voluntary or
unilateral change in position by the agency, if the complainant's claim is not insubstantial.’”
DaSilva v. U.S. Citizenship & Immigr. Servs., 599 F. App’x 535, 540–41 (5th Cir. 2014) (quoting 5
U.S.C. § 552(a)(4)(E)). “This second theory of causation requires the plaintiff to show that
‘prosecution of the action could reasonably be regarded as necessary to obtain the information and
that the action had a substantive causative effect on the delivery of the information.’” Id. at 541
(quoting Batton, 718 F.3d at 525).
Batton v. Internal Revenue Service is instructive regarding the meaning of “obtained relief”
in 5 U.S.C. § 552(a)(4)(E)(ii). 718 F.3d at 522. In Batton, the Internal Revenue Service only began
“to produce a fraction of the responsive documents” after the filing of the FOIA lawsuit. Batton,
718 F.3d at 526. However, “[t]he remaining documents still were not produced for years following
further litigation.” Id. Therefore, the Fifth Circuit determined that the FOIA requester was eligible
to receive attorneys’ fees. Id. Based on Batton, the Court interprets “obtained relief” to require
that the FOIA requester obtain (greater than a small fraction of) the responsive documents or
records or other requested relief. See id.
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I. Whether Huddleston Has Obtained Relief By Judicial Order, or an Enforceable
Written Agreement or Consent Decree

Huddleston does not address whether he has substantially prevailed by obtaining relief by
judicial order, an enforceable, or a consent decree. However, the Government argues that
Huddleston has not substantially prevailed because the 2023 Order required the Government to
produce a Vaughn index, rather than a responsive documents or records (Dkt. #145 at pp. 2 –3).
The Court’s most recent orders (the 2023 Order and the 2024 Order) have not required
the Government to produce responsive documents or records or other requested relief to Huddleston.
Rather, the Court has ordered the Government to either produce additional Vaughn indexes or file
an additional motion for summary judgment. Notably, Huddleston has not “obtained relief”
through the 2024 Order pursuant to 5 U.S.C. § 552(a)(4)(E) because neither an additional Vaughn
Index nor a motion for summary judgment (by the Government) consists of responsive documents or
records or other requested relief. Therefore, the Huddleston has not substantially prevailed pursuant
to the first prong of 5 U.S.C. § 552(a)(4)(E)(ii).
II. Whether Huddleston Has Obtained Relief By a Voluntary or Unilateral Change in
Position by the Government

Huddleston argues that he has substantially prevailed in this case because “[a]t the very
least, the FBI changed its position and began producing records in response to this lawsuit, and
that alone is sufficient to make [] Huddleston a prevailing party” (Dkt. #146 at p. 3). Huddleston
bases his argument on the over 20,000 potentially responsive documents uncovered in response to
Huddleston’s FOIA request in case compared to the zero documents produced in response to
Clevenger’s FOIA requests in the New York Case (Dkt. #146 at pp. 1 –3).
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The Government claims that “[m]uch of [Huddleston’s] discussion, which focuses on
prior litigation in the Eastern District of New York, does not bear on whether Plaintiff has
identified exceptional circumstances warranting the award interim fees in this case” (Dkt. #147 at
pp. 1 –2). However, the Government claims that “[Huddleston] has not done so, and the Court
should deny [Huddleston’s] request for interim fees” (Dkt. #147 at p. 2).
To substantially prevail under the second prong of 5 U.S.C. § 552(a)(4)(E)(ii), the FOIA
requester must prove that the FOIA action had a substantive causative effect on the delivery of the
information. DaSilva, 599 F. App’x at 541. Springer v. United States, a case from the Northern
District of Texas, is persuasive in this case. No. 3:20-CV-3088-B, 2022 WL 494379 (N.D. Tex.
Jan. 28, 2022). In Springer, the Federal Bureau of Prisons had not yet responded to the plaintiff’s
FOIA request before the plaintiff filed suit pursuant to his FOIA request. Id. at *3. The Federal
Bureau of Prisons had stated that processing the plaintiff’s FOIA requests may take up to nine
months. Id. at *1. However, the Federal Bureau of Prisons did not produce responsive records
within the nine-month time period and finally did so approximately a month after the plaintiff had
filed suit. Id. at *2. However, without additional facts, the court determined that the plaintiff had
not provided any hard evidence—beyond temporal proximity—supporting the inference that the
plaintiff’s lawsuit had caused the document release or other requested relief. Id. at *4. Therefore,
the Court found that the plaintiff had not substantially prevailed. Id. at *4.
Huddleston has not substantially prevailed under the second prong of 5 U.S.C.
§ 552(a)(4)(E)(ii) because he cannot demonstrate that the present FOIA action had a substantive
causative effect on the delivery of the information. Huddleston filed the present action less than
two months after filing his first FOIA request when the FBI’s FOIA program had not yet returned
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to full capacity due to the COVID-19 Pandemic (Dkt. #1; Dkt. #3-1). Huddleston filed the present
action on the same day he filed his second FOIA request and before he filed his third FOIA request
(Dkt. #1; Dkt. #2 ¶¶ 7, 8). The Government had not yet acknowledged Huddleston’s FOIA
requests when he filed the present suit (Dkt. #1; Dkt. #39-1 ¶ 11). Although the Government’s
discovery of over 20,000 potentially responsive documents to Huddleston’s FOIA requests after
the New York Case is far from perfect, the Government’s discovery of these documents after the
New York Case does not show that Huddleston’s filing of the present action caused the FBI to
acknowledge, let alone release, responsive records. Importantly, Huddleston has not shown that
his filing of this case before the Government even acknowledged his FOIA requests, as opposed to
his submission of three FOIA requests, had a substantive causative effect on the delivery of the
information. See Springer, 2022 WL 494379, at *4; Gahagan v. U.S. Citizenship & Immigr. Servs.,
No. 14–1268, 2015 WL 6738537, at *3 (E.D. La. Nov. 4, 2015) (“Plaintiff has presented no evidence
to show that USCIS’s and ICE’s ultimate disclosure of the requested documents resulted from the
filing of his lawsuit, rather than merely USCIS’s ability to overcome administrative problems.”);
Arevalo-Franco v. Immigr. & Naturalization Serv., 722 F. Supp. 959, 961 (W.D. Tex. 1991) (“It is
not enough to merely allege that because the documents were divulged after a lawsuit was filed,
said information was released as a result of that suit.”).
The Court does not explicitly hold in this Memorandum Opinion and Order that it will not
grant interim attorneys’ fees in this case. The Court will allow Huddleston to refile the pending
motions for interim fees before the entirety of this litigation has concluded. However, the Court
denies the pending motions without prejudice because Huddleston has not substantially prevailed.

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CONCLUSION
It is therefore ORDERED that Plaintiff’s Renewed Motion for Interim Payment of Costs
and Attorney Fees (Dkt. #143) is DENIED without prejudice.
It is further ORDERED that Plaintiff’s Supplemental Motion for Interim Payment of
Costs and Attorney Fees (Dkt. #165) is DENIED without prejudice.
IT IS SO ORDERED.

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