TABLE OF CONTENTS

II. This Court should affirm the district court’s dismissal of Offor’s FOIA complaint against the EEOC and Berry. 9

A. This Court should reject Offor’s argument regarding consent to proceed before a magistrate judge and her assertion that Berry is a proper party under FOIA. 9

B. This Court should affirm the district court’s dismissal of Offor’s complaint against the EEOC for lack of subject matter jurisdiction. 11

C. In the alternative, this Court should affirm dismissal of Offor’s complaint because the EEOC is entitled to summary judgment. 20

III. This Court should affirm the district court’s refusal to award attorney’s fees and other relief. 22

CONCLUSION.. 31

CERTIFICATE OF COMPLIANCE...........................................................................

CERTIFICATE OF SERVICE....................................................................................

Table of Authorities

Cases

Acequip Ltd. v. Am. Eng’g Corp.,
315 F.3d 151 (2d Cir. 2002)...................................................................... 20

Brayton v. Office of the U.S. Trade Representative,
641 F.3d 521 (D.C. Cir. 2011)................................................................... 25

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,
532 U.S. 598 (2001)................................................................................... 24

Calhoun v. FBI,
546 F. App’x 487 (5th Cir. 2013)........................................................ 13, 15

Cazalas v. U.S. Dep’t of Justice,
660 F.2d 612 (5th Cir.1981)...................................................................... 25

Chambers v. U.S. Dep’t of the Interior,
568 F.3d 998 (D.C. Cir. 2009)................................................................... 21

Chilivis v. SEC,
673 F.2d 1205 (11th Cir. 1982)................................................................. 25

Chrysler Corp. v. Brown,
441 U.S. 281 (1979)................................................................................... 20

Conservation Force v. Jewell,
160 F. Supp. 3d 194 (D.D.C. 2016)........................................................... 23

Cornucopia Inst. v. U.S. Dep’t of Agric.,
560 F.3d 673 (7th Cir. 2009)..................................................................... 22

Cotton v. Heyman,
63 F.3d 1115 (D.C. Cir. 1995)............................................................. 27, 28

Crooker v. U.S. State Dep’t,
628 F.2d 9 (D.C. Cir. 1980)....................................................................... 13

DaSilva v. U.S. Citizenship & Immigration Servs.,
599 F. App’x 535 (5th Cir. 2014).............................................................. 26

EEOC v. Associated Dry Goods Corp.,
449 U.S. 590 (1981)................................................................................... 20

Ginter v. IRS,
648 F.2d 469 (8th Cir. 1981)............................................................... 25, 26

Hernandez v. U.S. Customs & Border Prot. Agency,
No. 10-4602, 2012 WL 398328 (E.D. La. Feb. 7, 2012)............................ 30

Iturralde v. Comptroller of the Currency,
315 F.3d 311 (D.C. Cir. 2003)................................................................... 21

Judicial Watch, Inc. v. U.S. Dep’t of Commerce,
34 F. Supp. 2d 28 (D.D.C. 1998)............................................................... 11

Makarova v. United States,
201 F.3d 110 (2d Cir. 2000).......................................................... 12, 14, 16

Martinez v. Bureau of Prisons,
444 F.3d 620 (D.C. Cir. 2006)................................................................... 10

Maynard v. CIA,
986 F.2d 547 (1st Cir. 1993)...................................................................... 25

Morrison v. Nat’l Austl. Bank Ltd.,
547 F.3d 167 (2d Cir. 2008)...................................................... 8, 12, 14, 16

Mr. L. v. Sloan,
449 F.3d 405 (2d Cir. 2006)........................................................................ 8

Offor v. Mercy Med. Ctr.,
No. 15-cv-2219, 2016 WL 3566217 (E.D.N.Y. June 25, 2016)................. 17

Offor v. Mercy Med. Ctr.,
No. 15-cv-2219, 2016 WL 929350 (E.D.N.Y. Mar. 10, 2016)................... 17

Pietrangelo v. U.S. Army,
568 F.3d 341 (2d Cir. 2009)............................................................ 9, 23, 27

Polewsky v. Social Sec. Admin.,
No. 95-6125, 1996 WL 110179 (2d Cir. Mar. 12, 1996)..................... 13, 22

Prison Legal News v. Exec. Office for U.S. Attorneys,
628 F.3d 1243 (10th Cir. 2011)................................................................. 13

Pub. Emps. for Env’t Responsibility v. U.S. Section Int’l Boundary & Water Comm’n,
839 F. Supp. 2d 304 (D.D.C. 2012)........................................................... 30

Reinbold v. Evers,
187 F.3d 348 (4th Cir. 1999)..................................................................... 25

Russman v. Bd. of Educ.,
260 F.3d 114 (2d Cir. 2001)...................................................................... 13

Tax Analysts v. U.S. Dep’t of Justice,
965 F.2d 1092 (D.C. Cir. 1992)................................................................. 28

Tigue v. U.S. Dep’t of Justice,
312 F.3d 70 (2d Cir. 2002).......................................................................... 8

U.S. Dep’t of Justice v. Tax Analysts,
492 U.S. 136 (1989)................................................................................... 13

Union of Needletrades, Indus. & Textile Emps. v. U.S. Immigration & Naturalization Serv.,
336 F.3d 200 (2d Cir. 2003)...................................................................... 25

United Am. Fin., Inc. v. Potter,
770 F. Supp. 2d 252 (D.D.C. 2011), aff’d sub nom. United Am. Fin., Inc. v. Donahoe, 464 F. App’x 6 (D.C. Cir. 2012)............................................... 28

Voinche v. FBI,
999 F.2d 962 (5th Cir. 1993)..................................................................... 16

Vt. Low Income Advocacy Council, Inc. v. Usery,
546 F.2d 509 (2d Cir. 1976).......................................................... 24, 25, 26

W. Energy All. v. U.S. Fish & Wildlife Serv.,
608 F. App’x 615 (10th Cir. 2015)............................................................ 27

Walsh v. U.S. Dep’t of Veterans Affairs,
400 F.3d 535 (7th Cir. 2005)..................................................................... 13

Warren v. Colvin,
744 F.3d 841 (2d Cir. 2014)................................................................ 24, 27

Weisberg v. U.S. Dep’t of Justice,
745 F.2d 1476 (D.C. Cir. 1984)................................................................. 25

Williams & Connolly v. SEC,
662 F.3d 1240 (D.C. Cir. 2011)........................................................... 13, 16

Zervos v. Verizon N.Y., Inc.,
252 F.3d 163 (2d Cir. 2001)........................................................................ 9

Statutes

Freedom of Information Act

.... 5 U.S.C. § 552(a)....................................................................................... 10

.... 5 U.S.C. § 552(a)(4)(B).................................................................. 10, 13, 28

.... 5 U.S.C. § 552(a)(4)(E)(i)............................................................................. 6

.... 5 U.S.C. § 552(a)(4)(E)(ii).......................................................................... 23

5 U.S.C. § 552(a)(4)(F)(i)................................................................... 7, 9, 29

.... 5 U.S.C. § 552(a)(6)(c)............................................................................... 15

.... 5 U.S.C. § 552(b)(3)(A)(i).......................................................................... 19

.... 5 U.S.C. § 552(b)(5)..................................................................................... 3

.... Open Government Act of 2007, Pub. L. 110-175, 121 Stat. 2524............. 24

Title VII of the Civil Rights Act of 1964

.... 42 U.S.C. § 2000e-5(b).............................................................................. 19

.... 42 U.S.C. § 2000e-8(e)............................................................................... 19

5 U.S.C. § 1212................................................................................................ 7

5 U.S.C. § 1216(a)(3)........................................................................................ 7

Constitution

U.S. Const. art. III, § 2, cl.1............................................................................ 13

Administrative Materials

29 C.F.R. § 1601.22....................................................................................... 19

29 C.F.R. § 1610.5(c)..................................................................................... 18

29 C.F.R. § 1610.17....................................................................................... 19

EEOC Compliance Manual § 83.3, http://www.eeoc.gov/eeoc/foia/section83.cfm................................................................................................................... 19

Rules

Fed. R. Civ. P. 12(b)(1)............................................................................ passim

Fed. R. Civ. P. 12(b)(6)................................................................................... 21

Fed. R. Civ. P. 56.................................................................................. 4, 20, 21

U.S. Dist. Cts. for the S. & E. Dists. of N.Y., Local Civ. Rule 72.2............... 10

STATEMENT OF THE ISSUES

1. Whether the district court correctly dismissed Appellant Chinwe Offor’s Freedom of Information Act (“FOIA”) complaint against Appellee Kevin Berry because individuals are not proper defendants under FOIA.

2. Whether the district court correctly dismissed Offor’s FOIA complaint against Appellee Equal Employment Opportunity Commission (“EEOC” or “Commission”) for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).

3. Whether the district court properly exercised its discretion and correctly interpreted the FOIA statute in denying Offor relief, including attorney’s fees and injunctive relief.

STATEMENT OF THE CASE

I. Factual Background

On March 10, 2015, the Commission’s New York District Office received a FOIA request, dated March 4, from Offor seeking a copy of EEOC Charge File No. 520-2014-01315, Offor’s employment discrimination charge against her former employer, Mercy Medical Center (“Mercy”). A-70–71; A-74; A-76 (Williams Decl. ¶ 5); Offor 3/4/2015 FOIA Request; EEOC 3/11/2015 Letter).[1] In a letter dated March 11, 2015, the EEOC acknowledged receipt of Offor’s FOIA request. A-71; A-76 (Williams Decl. ¶ 6; EEOC 3/11/2015 Letter). The March 11 letter was signed by Berry, the District Director of the New York District Office. A-76 (EEOC 3/11/2015 Letter). The March 11 letter also indicated that Offor could perfect her FOIA request by forwarding a file-stamped copy of a court complaint, indicating that she had filed a lawsuit based on her charge. Id. The letter stated that, once Offor perfected her request, the Commission would begin processing the request and would provide an expected date of the Commission’s determination. Id. Then, in a letter dated April 14, 2015, and signed by Berry, the EEOC notified Offor that the New York District Office would process her FOIA request, and that the EEOC would issue a determination on or before May 12, 2015. A-71; A-78 (Williams Decl. ¶ 7; EEOC 4/14/2015 Letter).[2]

The EEOC began to search for Charge File No. 520-2014, but was unable to locate the file and therefore was unable to produce the requested documents by May 12. A-71 (Williams Decl. ¶ 8). In a letter dated May 13, 2015, and signed by Berry, the EEOC advised Offor that, after a thorough search, the Commission could not locate the charge file and believed it was lost. Id.; A-80 (EEOC 5/13/2015 Letter). The May 13 letter also explained that the EEOC would continue to search for the file and would provide it to Offor if found. A-71; A-80 (Williams Decl. ¶ 8; EEOC 5/13/2015 Letter).

Offor filed this FOIA suit on June 2, 2015, naming the EEOC and Berry as defendants, and served the EEOC and Berry on July 30, 2015. A-2; A-49–50 (Dist. Ct. Docket; Summons Affs.). The Commission located the charge file after Offor filed suit. A-71 (Williams Decl. ¶ 10). On August 3, 2015, the Commission issued a determination on Offor’s FOIA request stating that it had located Offor’s charge file. Id.; A-82–84 (EEOC 8/3/2015 Determination). At this time, the EEOC released all nonexempt documents responsive to Offor’s FOIA request. The Commission released 235 pages and did not withhold any pages from the charge file. A-71; A-82–84 (Williams Decl. ¶ 10; EEOC 8/3/2015 Determination). The Commission partially redacted three internal EEOC forms containing information exempt from disclosure under FOIA Exemption (b)(5) as deliberative process material. A-71; A-84 (Williams Decl. ¶10; EEOC 8/3/2015 Determination); see 5 U.S.C. § 552(b)(5). The August 3 determination advised Offor that she could file an administrative appeal directly with the Commission within thirty days of receipt to challenge the Commission’s FOIA determination. A-72; A-83 (Williams Decl. ¶ 11; EEOC 8/3/2015 Determination).

II. District Court Decision

The district court granted the EEOC and Berry’s Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. A-150 (Mem. of Decision & Order 2 (“Order”)). The district court did not reach the EEOC and Berry’s Fed. R. Civ. P. 56 motion for summary judgment or the EEOC and Berry’s argument that Offor did not exhaust her administrative remedies as to the substance of the EEOC’s production or the adequacy of the EEOC’s search. A-154 (Order 6).

First, the district court dismissed Offor’s complaint against Berry. A-150–151 (Order 2-3). As the district court explained, “[i]ndividual federal officials are not proper defendants in a FOIA action because it is the agency’s responsibility to produce records.” A-150 (Order 2) (citation omitted).

Second, the district court dismissed Offor’s complaint against the EEOC as moot under Fed. R. Civ. P. 12(b)(1) because the EEOC provided Offor with all of the documents that she requested. The district court explained that federal courts lack subject matter jurisdiction once “the substance of the controversy disappears and becomes moot,” A-155 (Order 7) (citation omitted), and emphasized that FOIA grants jurisdiction only to enjoin the withholding of records and to order the production of records. Id. Therefore, the district court reasoned, FOIA actions become moot “[o]nce the records are produced ... since the disclosure which the suit seeks has already been made.” Id. (citation omitted). Here, the district court explained, it lacked jurisdiction over Offor’s FOIA action because “it is undisputed that ... the EEOC produced all of the pages in [Offor’s] case file with modest redactions,” and Offor “does not object to the completeness of the production, nor to the modest redactions.” A-156–57 (Order 8-9).

Next, the district court addressed Offor’s allegations that the EEOC “made up” the charge file it produced, and that the Commission “colluded with [Mercy’s] counsel ... to withhold producing her case file to aid” Mercy in Offor’s Title VII discrimination suit against Mercy. A-157–58 (Order 9-10). Offor’s allegations, the district court concluded, did not defeat the mootness of her FOIA claim. Id.; A-153 (Order 5). The district court accepted the Commission’s account of its records search as described in a declaration by EEOC representative Michael Williams, the District Resource Manager for the New York District Office. A-70–72; A-157 (Willams Decl.; Order 9). By contrast, “the court [found] [] the Plaintiff’s contention in her response brief that the EEOC sent her ‘made up’ pages to be speculation and clearly not sufficient to raise a question as to the completeness of the EEOC’s production.” A-157 (Order 9). Also, the district court deemed Offor’s allegation of collusion “totally unsupported and plainly belied by the fact that the EEOC did produce all of the documents that [Offor] requested shortly after she filed” an employment discrimination action against Mercy. A-158 (Order 10).

Having determined that Offor’s claim for the documents was moot, the district court then concluded that Offor was not entitled to other relief requested in her complaint: “attorney’s fees; an injunction against the EEOC from refusing to comply with subsequent requests for similar documents; and the appointment of a Special Counsel to initiate an investigation into the EEOC’s actions.” A-158 (Order 10); see also A-13–15 (Offor Compl.).

First, the district court determined that Offor was not eligible for attorney’s fees because she did not “substantially prevail.” A-158–59 (Order 10-11) (quoting 5 U.S.C. § 552(a)(4)(E)(i)). Instead, Offor “obtained her case file because the EEOC was able to locate the file and voluntarily decided to furnish the case file.” Id.

Next, the district court explained that its jurisdiction to order injunctive relief was limited “to enjoining the agency from withholding the specific records requested by the complaint.” A-159 (Order 11). That is, the statute “does not authorize the vague injunction against future conduct sought by [Offor].” Id. Also, the district court added, even if such relief were authorized, Offor “has made no showing that she is entitled to such injunctive relief given that the EEOC has complied with all of its obligations under FOIA by producing the documents [she] requested.” Id.

Finally, the district court explained that Special Counsel proceedings are contingent on the court’s “written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding. A-159–60 (Order 11-12) (quoting 5 U.S.C. § 552(a)(4)(F)(i)).[3] The district court declined to issue such a finding. A-160 (Order 12).

SUMMARY OF THE ARGUMENT

This Court should affirm the district court’s dismissal of Offor’s FOIA complaint against the EEOC and Berry. The district court properly dismissed the complaint against Berry because FOIA does not authorize suits against agency officials, and the district court correctly granted dismissal of Offor’s complaint against the EEOC for lack of subject matter jurisdiction. As the district court explained, the EEOC’s production of the requested documents mooted Offor’s suit. Moreover, to the extent that Offor challenges the substance of the EEOC’s production or the adequacy of the EEOC’s search, those issues are not properly before this Court because Offor failed to exhaust her administrative remedies. Also, as the district court correctly found, Offor’s allegations of collusion and fabrication by the EEOC do not undermine the mootness determination because they are speculative and fail to rebut the EEOC’s account of its search. In the alternative, this Court should affirm dismissal because the EEOC and Berry are entitled to summary judgment.

This Court should also affirm the district court’s denial of attorney’s fees and injunctive relief and its decision declining to enter an order that would trigger a Special Counsel referral. Offor is not eligible for attorney’s fees because she did not substantially prevail, and she is not entitled to attorney’s fees because her request was made for personal advantage, not to further the public interest. The district court had no authority under FOIA to order additional injunctive relief, and the statutory prerequisites for a Special Counsel referral were not present here.

ARGUMENT

I. Standard of Review

In reviewing a district court’s dismissal of a complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), this Court reviews legal conclusions de novo and factual findings for clear error. Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167 (2d Cir. 2008) (citation omitted). Summary judgment is reviewed de novo. Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 75 (2d Cir. 2002). This Court also applies de novo review to questions of law involving statutory interpretation, Mr. L. v. Sloan, 449 F.3d 405, 406 (2d Cir. 2006), such as whether individual federal officials are proper defendants under FOIA and the scope of relief available under FOIA. This Court reviews a district court’s denial of attorney’s fees for abuse of discretion, although it reviews related legal questions de novo. Pietrangelo v. U.S. Army, 568 F.3d 341, 343 (2d Cir. 2009). Finally, this Court reviews factual findings for clear error, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168 (2d Cir. 2001), and therefore it reviews for clear error the district court’s determination on whether to issue a finding of arbitrary or capricious conduct that would trigger a Special Counsel investigation. See 5 U.S.C. § 552(a)(4)(F)(i).

II. This Court should affirm the district court’s dismissal of Offor’s F OIA complaint against the EEOC and Berry.

A. This Court should reject Offor’s argument regarding consent to proceed before a magistrate judge and her assertion that Berry is a proper party under F OIA.

Before addressing Offor’s FOIA complaint against the EEOC, this Court should resolve two threshold issues in the EEOC and Berry’s favor. First, Offor asserts that this Court should vacate the district court’s ruling because Offor never consented to proceed before a magistrate judge. Offor Br. 7. But District Court Judge Spatt ruled on the EEOC and Berry’s motion himself, without a recommendation or any other involvement from a magistrate judge. This is apparent from the order granting dismissal and the district court docket. A-3; A-149 (Dist. Ct. Docket; Order 1). Offor states, without citation, that Judge Spatt “referred” “this case” to Magistrate Judge Lindsay. Offor Br. 7. However, the district court docket does not reflect a referral by Judge Spatt to Magistrate Judge Lindsay. Instead, the docket shows that the district court clerk assigned the case to Magistrate Judge Lindsay, consistent with the Eastern District of New York’s practice of assigning a magistrate judge at the inception of any civil case. A-2 (Dist. Ct. Docket); see U.S. Dist. Cts. for the S. & E. Dists. of N.Y., Local Civ. Rule 72.2.

Second, the district court properly dismissed Offor’s claims against Berry because individual federal officials are not proper defendants under FOIA. A-150–51 (Order 2-3). FOIA imposes the responsibility to produce records on agencies and accordingly authorizes suit against agencies. 5 U.S.C. § 552(a) (providing that “agenc[ies] shall make available to the public [certain] information”); id. at § 552(a)(4)(B) (authorizing suit against “agenc[ies]”); see also Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (explaining that FOIA “concern[s] the obligations of agencies as distinct from individual employees in those agencies” and therefore “no cause of action exists that would entitle [a requester] to relief from [individual employees] under ... FOIA”).

Offor asserts that the district court erroneously determined that suit could not proceed against Berry but does not contest the district court’s reasoning that FOIA’s statutory language indicates that individuals are not proper defendants. Offor Br. 13. Although Offor cites Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 34 F. Supp. 2d 28 (D.D.C. 1998), in support of her claim that Berry was a proper defendant, that decision does not endorse FOIA suits against an individual agency employee. See id. at 33-35, 42, 44 (explaining that final judgment requiring agency to produce records may be enforced against former agency employees “to which the [agency] transferred possession of responsive documents in an attempt to circumvent the FOIA,” where there was “substantial evidence” that former employees removed responsive documents upon leaving the agency).

Offor also suggests that an individual agency employee may be a FOIA defendant because FOIA provides for Special Counsel proceedings to determine whether sanctions against agency personnel are warranted. Offor Br. 13. But a Special Counsel proceeding is not a FOIA lawsuit. See Judicial Watch, 34 F. Supp. 2d at 44 n.11 (“[R]eferral to the Office of Special Counsel ... is not truly ‘relief’ for the plaintiff, but is instead a mechanism to be employed at the court’s discretion.”). And, as discussed in more detail infra at 29, Special Counsel proceedings are contingent on several preconditions not present here.

B. This Court should affirm the district court’s dismissal of Offor’s complaint against the EEOC for lack of subject matter jurisdiction.

The district court properly dismissed Offor’s suit for lack of subject matter jurisdiction under Fed. R. Civ. P. 26(b)(1), deeming Offor’s action moot because the EEOC produced the requested records. On appeal, Offor argues that her FOIA suit was not moot because the EEOC allegedly “fraudulently entered into” an “illegal, private agreement” with Mercy’s counsel, “collu[ded]” with Mercy’s counsel to withhold the charge file, “lied” that the charge file was lost, and produced a “made-up” charge file. Offor Br. 4-6, 10, 15. To the extent that Offor is challenging the substance of the EEOC’s production or the adequacy of the agency’s search by alleging collusion and fabrication, she has failed to exhaust her administrative remedies as to such a challenge. And, even assuming arguendo that Offor exhausted her administrative remedies as to substance and adequacy, the district court properly determined that Offor’s allegations of improprieties did not defeat mootness.

First, the district court correctly held that it lacked subject matter jurisdiction because Offor’s claims against the EEOC were moot. The party asserting subject matter jurisdiction (here, Offor) has the burden of establishing jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A claim is properly dismissed for lack of subject matter jurisdiction under [Fed. R. Civ. P.] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Morrison, 547 F.3d at 170. Because jurisdiction requires a “real or live” “case or controversy,” “if the dispute should dissolve at any time due to a change in circumstances, the case becomes moot,” and “the court ... loses jurisdiction.” Russman v. Bd. of Educ., 260 F.3d 114, 118 (2d Cir. 2001) (citing U.S. Const. art. III, § 2, cl.1).

“FOIA confers jurisdiction on the district courts ‘to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.’” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). Therefore, FOIA jurisdiction depends upon a showing that the government has improperly withheld agency records. Id. (citation omitted). Accordingly, in a FOIA action to compel production of records, “[o]nce the records are produced the substance of the controversy disappears and becomes moot since the disclosure which the suit seeks has already been made.” Crooker v. U.S. State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980); see also, e.g., Calhoun v. FBI, 546 F. App’x 487, 490 (5th Cir. 2013) (no case or controversy remains under FOIA after release of documents to the requester); Williams & Connolly v. SEC, 662 F.3d 1240, 143 (D.C. Cir. 2011) (same); Prison Legal News v. Exec. Office for U.S. Attorneys, 628 F.3d 1243, 1247 (10th Cir. 2011) (same); Walsh v. U.S. Dep’t of Veterans Affairs, 400 F.3d 535, 536-37 (7th Cir. 2005) (same); see also Polewsky v. Social Sec. Admin., No. 95-6125, 1996 WL 110179, at *2 (2d Cir. Mar. 12, 1996) (same; Privacy Act). Therefore, courts routinely dismiss FOIA claims as moot even where production occurs after a lawsuit is filed. E.g., Calhoun, 546 F. App’x at 489-90; Walsh, 400 F.3d at 536-37; Prison Legal News, 628 F.3d at 1246-47. Offor does not argue that the district court misinterpreted the law on this point.

Applying these principles, the district court correctly determined that Offor’s FOIA lawsuit is moot. Offor’s lawsuit alleges that the EEOC failed to respond to her FOIA request regarding her charge file. A-8–9; A-13. (Offor Compl. ¶¶ 8, 11, 23). The Commission’s August 3, 2015, determination released all nonexempt records from the charge file, with only a few minor redactions that Offor does not challenge. A-82–84 (EEOC 8/3/2015 Determination). Therefore, Offor’s FOIA suit no longer presents a live controversy and was properly dismissed as moot. In reaching this conclusion, the district court appropriately relied on the declaration of an EEOC representative who stated that the EEOC produced the complete file. See A-157 (Order 9); Makarova, 201 F.3d at 113 (courts may consider matters outside the pleadings when resolving a Fed. R. Civ. P. 12(b)(1) motion to dismiss). The district court did not commit clear error in crediting the EEOC representative’s account. Morrison, 547 F.3d 167 (clear error review applies to district court’s factual findings in dismissing a complaint for lack of subject matter jurisdiction).

Second, to the extent that Offor now challenges the substance of the EEOC’s August 3 production or the adequacy of the EEOC’s search leading to that production, Offor has failed to exhaust her administrative remedies. Offor incorrectly asserts that the district court “found that [she] had not exhausted her administrative remedies.” Offor Br. 32. The district court actually specified that it did not reach the exhaustion issue. A-153–54 (Order 5-6). Also, Offor appears to wrongly assume that the EEOC contested whether she could bring suit to challenge the EEOC’s delayed production of the charge file. See Offor Br. 32-34. In fact, the EEOC acknowledges that Offor could bring suit seeking production of the charge file because the EEOC did not produce the requested records within the statutory time frame. See 5 U.S.C. § 552(a)(6)(c). However, failure to exhaust provides an alternate ground for affirmance for any challenge to substance or adequacy.

In particular, assuming Offor’s allegations that the EEOC produced a “made-up” file and that the EEOC colluded with Mercy’s counsel are intended as such a challenge, she should have appealed administratively after receiving the EEOC’s August 3 determination. The Commission’s August 3 determination clearly provided notice that Offor was required to file an administrative appeal with the Commission within thirty days of receipt, but Offor never did so. Because FOIA requires administrative exhaustion, and because Offor did not exhaust her administrative remedies as to the EEOC’s production, she may not challenge the substance of the EEOC’s production or the adequacy of the search before this Court. See Calhoun, 546 F. App’x at 490 (5th Cir. 2013) (concluding that agency’s production after filing of FOIA suit mooted plaintiff’s claim seeking documents and that district court properly dismissed any claims challenging the substance of the released documents for failure to exhaust); Voinche v. FBI, 999 F.2d 962, 963 (5th Cir. 1993) (same).

Finally, even assuming arguendo that Offor has exhausted her administrative remedies as to substance or adequacy, the district court correctly determined that Offor’s allegations of collusion and a supposedly “made-up” production did not defeat mootness. A-153; A-157–58 (Order 5, 9-10). Offor asserts that the district court failed to consider these allegations, but this is plainly not accurate. See Offor Br. 8-9. The district court acknowledged that a FOIA claim is not moot where the agency has not released all responsive documents. A-156 (Order 8); see Williams & Connolly, 662 F.3d at 1243-44 (FOIA case not moot as to documents that agency had not yet released). But, as described supra at 5, the district court found Offor’s allegations regarding the EEOC’s production “speculati[ve],” and instead credited EEOC’s representative who declared that the Commission released Offor’s full charge file. A-157 (Order 9). Again, the district court properly considered the EEOC representative’s declaration, Makarova, 201 F.3d at 113, and did not clearly err in accepting the Commission’s account. Morrison, 547 F.3d 167. Offor had the burden to establish subject matter jurisdiction by a preponderance of the evidence, Makarova, 201 F.3d at 113, but her speculations about supposed improprieties did not meet that standard.

Offor’s arguments on appeal do not rebut the district court’s determination that her allegations are “speculati[ve].” On the contrary, in alleging collusion and fabrication, Offor misrepresents the record, misunderstands the EEOC’s FOIA practices, and misinterprets the FOIA statute and the EEOC’s regulations pertaining to release of charge files. For example, Offor mischaracterizes record evidence by asserting that Mercy’s counsel “admitted”:

[T]hat he had a private agreement with the EEOC in lieu of redaction of documents produced by his clients to EEOC, that the EEOC will not release the charge file to anyone (even in the face of a FOIA request)[,] [ ] that the EEOC will only respond to requests pursuant to [FOIA] [if]...the federal claims arising from the charge of discrimination are in litigation[,] AND [that the EEOC will only release documents] to the parties or their legal representatives.

Offor Br. 6, 8. In support, Offor cites documents from her Title VII suit against Mercy: (1) an exhibit to Mercy’s motion to seal Offor’s pleadings that contained confidential information; and (2) a letter from Mercy’s counsel to Offor’s counsel regarding Offor’s motion for sanctions. A-127–29; A-130–35 (Gegwich Decl.; Gegwich Letter); Offor Br. 6, 11, 22 (citing A-125–26; A–128; A-132–34).[4]

But Mercy’s counsel explicitly disclaimed any “agreement” with the EEOC in one of the very documents Offor cites. A-132–133 (Gegwich Letter) (“I did not enter into any ‘private agreement’ with the EEOC regarding Dr. Offor’s EEOC file[.] ... I did not enter into any agreement with the EEOC regarding the release of your client’s charge file[.]”). Instead, Mercy’s counsel stated that he spoke to a representative of the EEOC during the investigation of Offor’s charge, and that the EEOC representative confirmed the EEOC’s general practice regarding release of charge files, including the EEOC’s practice of not releasing charge files to the general public. Id.; A-128 (Gegwich Decl.).

Rather than forging an “agreement,” it appears that the EEOC representative accurately described the EEOC’s general charge release practice to Mercy’s counsel. In general, (1) the EEOC does not release charge files to the general public; (2) charging parties may obtain charge files if the EEOC has issued a Notice of Right to Sue (before the Notice expires), or if they have filed a complaint in federal court; and (3) respondents may obtain charge files if the charging party has filed a complaint in federal court. See 29 C.F.R. § 1610.5(c) (“A respondent must always provide a copy of the ‘Filed’ stamped court complaint when requesting a copy of a charge file. The charging party must provide a copy of the ‘Filed’ stamped court complaint when requesting a copy of the charge file if the Notice of Right to Sue has expired.”); EEOC Compliance Manual § 83.3, http://www.eeoc.gov/eeoc/foia/section83.cfm.

On a related note, Offor appears to challenge the EEOC’s practices for release of charge files, arguing, among other things, that “disinterested third parties” should be able to obtain an EEOC charge file under FOIA and that the EEOC’s FOIA regulations cannot supersede FOIA. Offor Br. 28-29, 31-32. Offor’s arguments about the EEOC’s FOIA practices are irrelevant to this appeal because, as a charging party, Offor was eligible to obtain her charge file under FOIA (and in fact received it). Moreover, she is wrong on the merits. The EEOC’s charge release practices comply with FOIA Exemption (b)(3), which encompasses information that is “specifically exempted from disclosure by statute,” where the statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue.” 5 U.S.C. § 552(b)(3)(A)(i). Title VII expressly prohibits the EEOC from “mak[ing] public” any charges or any information obtained during an EEOC investigation before the institution of proceedings involving that information. 42 U.S.C. §§ 2000e-5(b), 2000e-8(e); see also 29 C.F.R. §§ 1601.22, 1610.17(b), (c). Therefore, the EEOC’s practice is that charges and information obtained during an investigation may not be disclosed “prior to the institution of any proceedings under [Title VII] involving such charge or information.” 29 C.F.R. § 1601.22. The EEOC treats charging parties and respondents differently than “disinterested third parties” because the former, as parties to the charge, are not considered part of the “public.” EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 598 (1981).[5]

In summary, none of Offor’s arguments establish that the district court erred in determining that her allegations of collusion and fabrication did not defeat mootness. The district court reasonably credited the EEOC representative’s declaration describing the agency’s search, the evidence Offor cites actually contradicts her allegations, and Offor’s attempt to undermine the EEOC’s charge release practices does not succeed.

C. In the alternative, this Court should affirm dismissal of Offor’s complaint because the EEOC is entitled to summary judgment.

Although the district court did not reach the EEOC and Berry’s Fed. R. Civ. P. 56 motion for summary judgment, it provides an alternate ground for affirmance. Acequip Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir. 2002) (explaining that this Court may “affirm the district court’s judgment on any ground appearing in the record, even if the ground is different from the one relied on by the district court”). Assuming, counterfactually, that Offor has exhausted a challenge to the completeness of the EEOC’s production and the adequacy of the search, see supra at 14-16, she has failed to raise an issue of fact. The EEOC representative’s declaration describes the EEOC’s search for the file and explains that the EEOC produced the charge file, with minor redactions. Iturralde v. Comptroller of the Currency, 315 F.3d 311, 314 (D.C. Cir. 2003) (explaining that an agency may obtain summary judgment on FOIA plaintiff’s adequacy challenge by providing an affidavit describing the search and production) (citation omitted). For the reasons explained above, see supra at 17-18, Offor’s allegations of collusion and fabrication do not rely on “countervailing evidence” that raises “substantial doubt” as to the adequacy of the Commission’s search. Iturralde, 315 F.3d at 314 (citations omitted). Nor do Offor’s allegations “rebut[] the presumption of good faith accorded the agency’s declaration[].” Chambers v. U.S. Dep’t of the Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009). Therefore, the EEOC and Berry were also entitled to dismissal on summary judgment grounds.[6]

III. This Court should affirm the district court’s refusal to award attorney’s fees and other relief.

The district court declined to award Offor attorney’s fees and injunctive relief and declined to enter a finding that would trigger a Special Counsel proceeding. This Court should affirm the district court’s denial of relief because Offor cannot establish eligibility or entitlement for attorney’s fees, the statute does not authorize the injunctive relief Offor demanded, and the district court properly declined to enter a Special Counsel finding. This Court should also reject Offor’s argument that, in denying this relief, the district court “granted the Defendants/Appellees a dismissal of all of the Appellant’s claims in her complaint though the Defendants/Appellees neither sought the said reliefs in their motion paper nor argued in their supportive brief.” Offor Br. 21. The relief Offor demanded in her complaint did not consist of independent “claims”; instead, the relief she pursued was contingent on her FOIA claim seeking production of the requested records. See, e.g., Polewsky, 1996 WL 110179 at *2 (affirming district court’s denial of attorney’s fees where plaintiff’s Privacy Act suit was moot due to the agency’s release of all requested documents, because plaintiff had not “substantially prevailed”); Cornucopia Inst. v. U.S. Dep’t of Agric., 560 F.3d 673, 675-77 (7th Cir. 2009) (explaining that, although FOIA plaintiff did not file separate motion seeking attorney’s fees, district court appropriately “summarily reject[ed] the request for attorney’s fees and costs included in [plaintiff’s] prayer for relief once it held that [plaintiff]” did not substantially prevail due to mootness).

First, the district court did not abuse its discretion in denying Offor attorney’s fees. Offor acknowledges that, to receive an award of attorney’s fees and litigation costs, a FOIA plaintiff must establish that he or she is both eligible for and entitled to the award. Offor Br. 14-15; Pietrangelo, 568 F.3d at 343. The district court correctly concluded that Offor did not “substantially prevail,” and that she was therefore ineligible for an award of fees and costs. A-158 (Order 10); see Pietrangelo, 568 F.3d at 343. To “substantially prevail,” a FOIA plaintiff must “obtain[] 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)(ii). As the district court explained, none of the definitions of “substantially prevail” apply here. A-158 (Order 10). Offor alleges that there was a “voluntary or unilateral change in position by the agency [] as a direct result of the filing and service of the complaint upon it,” Offor Br. 17, but this is incorrect.

To begin, the EEOC did not make a “change in position.” There was no “about-face from an agency refusal [to produce records] here,” Conservation Force v. Jewell, 160 F. Supp. 3d 194, 206 (D.D.C. 2016), because the Commission never took the position that it was withholding Offor’s charge file. Instead, the EEOC initially informed Offor that it could not locate her charge file and stated that it would continue searching for the file. A-80 (EEOC 5/13/2015 Letter). Compare Warren v. Colvin, 744 F.3d 841, 843, 845 (2d Cir. 2014) (agency conceded that FOIA plaintiff was entitled to costs where agency provided only “nonresponsive communications” before plaintiff filed suit). As explained supra at 18-19, the EEOC’s long-standing practice is to produce charge files to charging parties after the investigation has concluded. The Commission’s production of Offor’s file, once located, reflects that practice.

Moreover, although Offor acknowledges that FOIA plaintiffs must show that a lawsuit “was reasonably necessary to obtain the requested records and that a causal nexus exists between the suit and the agency’s disclosure of records,” Offor Br. 20, she cannot establish causation and necessity. See Vt. Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir. 1976) (“[T]o obtain an award of attorney fees in an FOIA action, a plaintiff must show at minimum that the prosecution of the action could reasonably have been regarded as necessary and that the action had substantial causative effect on the delivery of the information.”).[7]

Offor asserts that the timing of the EEOC’s production of her charge file—shortly after the EEOC and Berry were served—definitively establishes causation. Offor Br. 17. But FOIA’s fee-shifting provision was not intended to justify fees “whenever a suit was brought and the requested information ... was thereafter furnished.” Vt. Low Income, 546 F.2d at 513. Therefore, “the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984).[8] Here, the Commission initially could not locate Offor’s requested documents, but produced the charge file upon locating it. See Maynard v. C.I.A., 986 F.2d 547, 568 (1st Cir. 1993) (FOIA plaintiff did not substantially prevail where agency “subsequently found and delivered a lost document” because “there [was] no showing that the suit was the cause of the delivery of [the] document”); Vt. Low Income, 546 F.2d at 513-15 (FOIA plaintiff did not substantially prevail where agency temporarily could not locate the requested records and released them shortly after locating the documents); Ginter v. IRS, 648 F.2d 469, 473 (8th Cir. 1981) (FOIA plaintiff did not substantially prevail where “delay in producing the information was due in part to ... the government’s inability to find the document”).

Offor’s immediate recourse to FOIA litigation—she filed suit only a couple weeks after the EEOC informed her that it could not locate her file and only about three months after her initial request—does not establish that a lawsuit was “reasonably necessary.” On the contrary, filing a lawsuit shortly after submitting a FOIA request “demonstrates a resort to the squeaky wheel technique of prematurely filing suit in an effort to secure preferential treatment that the FOIA fee-shifting scheme was not meant to reward.” DaSilva v. U.S. Citizenship & Immigration Servs., 599 F. App’x 535, 542 (5th Cir. 2014); see also Vt. Low Income, 546 F.2d at 513 (“[T]he fact that a party is legally entitled to invoke the aid of the courts does not demonstrate that a rush to the courthouse door is always reasonable.”); Ginter, 648 F.2d at 473 (emphasizing that FOIA plaintiff filed suit only six months after his initial request for documents and only five months after the agency informed him of challenges obtaining the requested information). Nor is this a case where the agency “voluntarily compl[ied] with a request on the eve of trial to avoid liability for litigation costs.” Warren, 744 F.3d at 845. Also, Offor alludes to supposed bad faith by the EEOC, again alleging that there was an “illegal agreement” between the EEOC and Mercy’s counsel. But, as explained supra at 17-18, Offor’s allegations are unsupported, and they do not provide evidence of necessity or causation.

Even if Offor could show that she is eligible for attorney’s fees, she cannot establish entitlement. As Offor recognizes, this Court considers four criteria in assessing whether a FOIA plaintiff is entitled to fees: “(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) whether the Government had a reasonable basis for withholding requested information.” Pietrangelo, 568 F.3d at 343; Offor Br. 19.

Offor claims that she was entitled to fees because her interest in the charge file “was neither commercial nor frivolous; but the requested documents were sought in order to assist Plaintiff/Appellant prosecute her claims for Employment Discrimination.” Offor Br. 17. But this admission establishes that Offor made her request for “personal reasons,” and “an award of fees [in such cases] is usually inappropriate.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995); see also W. Energy All. v. U.S. Fish & Wildlife Serv., 608 F. App’x 615, 619 (10th Cir. 2015) (same). This is because the first three factors are meant to “assist a court in distinguishing between requesters who seek documents for public informational purposes and those who seek documents for private advantage.” United Am. Fin., Inc. v. Potter, 770 F. Supp. 2d 252, 256–58 (D.D.C. 2011) (citation omitted), aff’d sub nom. United Am. Fin., Inc. v. Donahoe, 464 F. App’x 6 (D.C. Cir. 2012). Offor did not request her charge file to further the public benefit—that is, “to add to the fund of information that citizens may use in making vital political choices”— but instead sought the records for private advantage, to “facilitat[e] her employment discrimination suit.” Cotton, 63 F.3d at 1120-21. The fourth factor “is intended to weed out those cases in which the government was ‘recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.’” United Am. Fin., 770 F. Supp. 2d at 257 (quoting Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092, 1097 (D.C. Cir. 1992)). Here, the EEOC was neither recalcitrant nor obdurate; instead, it produced Offor’s charge file shortly after it located the documents. Therefore, Offor cannot establish that any of the entitlement factors weigh in her favor.

Second, the district court correctly declined to award injunctive relief. Offor does not question the district court’s interpretation of the FOIA statute, which authorizes courts to award limited injunctive relief: production of requested documents. 5 U.S.C. § 552(a)(4)(B). As the district court explained, it was not authorized to order that an agency engage in future conduct, and, at any rate, Offor did not establish that such relief would be warranted given the Commission’s production. A-159 (Order 11).

Finally, Offor asserts that the district court erred by “fail[ing] to appoint a Special Counsel or impose Sanctions on the EEOC.” Offor Br. 9. Although FOIA does not authorize district courts to impose sanctions, the statute provides for Special Counsel proceedings under certain circumstances:

Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.

5 U.S.C. § 552(a)(4)(F)(i). That is, a Special Counsel proceeding is contingent on the district court (1) ordering the agency to produce records; (2) assessing attorney’s fees; and (3) issuing a separate written finding. Id. As explained, the district court correctly did not order production of documents because the EEOC produced the full charge file (and Offor did not object to the EEOC’s minor redactions), and the district court correctly did not assess attorney’s fees because Offor did not “substantially prevail.” See supra at 11-20, 22-23.

Moreover, the district court did not clearly err in declining to issue a written finding because the EEOC promptly provided the full charge file, with minor redactions, once it located the file. Compare Hernandez v. U.S. Customs & Border Prot. Agency, No. 10-4602, 2012 WL 398328, at *4, *12-13 (E.D. La. Feb. 7, 2012) (declining to issue a written finding even though the agency’s “initial failure to respond to [the] request was unreasonable,” and even though the district court ordered the agency to release documents and awarded attorney fees). Offor’s argument that the district court abused its discretion turns on her allegation that the EEOC entered into an “agreement” with defense counsel in Offor’s Title VII case. Offor Br. 9-12. But, as explained supra at 17-18, no such agreement ever existed, and the district court did not abuse its discretion in declining to issue a written finding based on the fabricated agreement. See, e.g., Pub. Emps. for Env’t Responsibility v. U.S. Section Int’l Boundary & Water Comm’n, 839 F. Supp. 2d 304, 329-30 (D.D.C. 2012) (declining to issue a written finding because there was no evidence supporting requester’s claim that the agency “acted improperly” or with “hostility”).

CONCLUSION

For the foregoing reasons, this Court should affirm the district court’s order granting dismissal and declining to award relief.

Respectfully submitted,

P. DAVID LOPEZ /s/ Anne W. King_____

General Counsel ANNE W. KING

Attorney

JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

LORRAINE C. DAVIS 131 M St. NE, Fifth Floor

Assistant General Counsel Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

[1] Citations to “A-__” refer to the Joint Appendix filed with this court on September 8, 2016.

[2] As explained in greater detail infra at 18-19, the EEOC releases charge files to charging parties under FOIA either (1) within ninety days after the Commission has issued a Notice of Right to Sue on the charge or (2) after the charging party has filed a lawsuit based on the charge. The EEOC issued a Notice of Right to Sue on Offor’s charge against Mercy on February 27, 2015, at Offor’s request. A-23–26 (Agweuegbo Letter 2/19/2015; Notice of Right to Sue 2/27/2015). Therefore, Offor’s March 4 FOIA request fell within the ninety-day window after the EEOC issued the Notice of Right to Sue. A-74 (Offor 3/4/2015 FOIA Request).

[3] “Special Counsel” refers to the U.S. Office of Special Counsel (“OSC”), an independent federal investigative and prosecutorial agency. See 5 U.S.C. § 1212 (outlining OSC’s powers and functions); id. § 1216(a)(3) (authorizing OSC to investigate “arbitrary or capricious withholding of information prohibited under [FOIA]”).

[4] See also Offor v. Mercy Med. Ctr., No. 15-cv-2219, 2016 WL 929350, at *24-26 (E.D.N.Y. Mar. 10, 2016) (granting Mercy’s motion to seal pleadings that contained unredacted confidential information, including details of infant patients’ medical care and other personal information, based on Fed. R. Civ. P. 5.2(a) and the Health Insurance Portability and Accountability Act); Offor v. Mercy Med. Ctr., No. 15-cv-2219, 2016 WL 3566217, at *1, *3-5 (E.D.N.Y. June 25, 2016) (granting Mercy’s motion for sanctions for Offor’s filing of confidential information and denying Offor’s motion for sanctions because Offor’s “contentions” “that the EEOC is in collusion with [Mercy’s counsel] to prevent [Offor] from obtaining discovery related to her discrimination claims” were “wholly unsupported, speculative, and without any legal basis”).

[5] Offor appears to suggest that Chrysler Corp. v. Brown, 441 U.S. 281 (1979), cast doubt on the EEOC’s charge release regulations. Offor Br. 31. This is incorrect. Chrysler assessed whether a Department of Labor regulation (which permitted DOL to disclose trade secrets that companies provided to the agency) satisfied an exception to the Trade Secrets Act, which generally precludes the government from releasing trade secrets to the public. Id. at 295-96, 315-16.

[6] Offor argues that the district court erred by simultaneously considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6) motion to dismiss and a Fed. R. Civ. P. 56 motion for summary judgment, but this is wrong. Offor Br. 25-27. First, the EEOC and Berry brought a Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, not a Fed. R. Civ. P. 12(b)(6) motion for failure to state a claim. Second, the district court did not reach the summary judgment motion. A-153–54 (Order 5-6).

[7] Vermont Low Income likely remains good law after the Open Government Act of 2007, Pub. L. 110-175, 121 Stat. 2524, which amended FOIA’s fee-shifting provision to provide that a FOIA plaintiff may “substantially prevail” if the agency makes a “voluntary or unilateral change in position.” After the Supreme Court’s decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 610 (2001), which rejected the “catalyst theory” for attorney’s fees under certain statutes, this Court abrogated Vermont Low Income’s holding that FOIA plaintiffs need not obtain a court order to “substantially prevail.” Union of Needletrades, Indus. & Textile Emps. v. U.S. Immigration & Naturalization Serv., 336 F.3d 200, 203, 206-07 (2d Cir. 2003) (extending Buckhannon’s rejection of the catalyst theory to FOIA). However, the Open Government Act superseded Union of Needletrades by “chang[ing] [FOIA’s] ‘eligibility’ prong back to its pre-Buckhannon form.” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 525 (D.C. Cir. 2011).

[8] See also Maynard v. CIA, 986 F.2d 547, 568 (1st Cir. 1993) (release of documents after filing of FOIA suit did not establish that plaintiff substantially prevailed); Chilivis v. SEC, 673 F.2d 1205, 1212 (11th Cir. 1982) (same); Ginter v. IRS, 648 F.2d 469, 473 (8th Cir. 1981) (same); Cazalas v. U.S. Dep’t of Justice, 660 F.2d 612, 619 (5th Cir.1981) (same); cf. Reinbold v. Evers, 187 F.3d 348, 363 (4th Cir. 1999) (release of documents after filing of Privacy Act suit did not establish that plaintiff substantially prevailed).