Notice & Comment

Attorney’s Fees When Private Entities Intervene: Detention Watch Network v. ICE

Summary: Last week, a judge held the Government responsible for FOIA plaintiffs’ attorneys’ fees incurred after the Government declined to appeal an adverse judgment and a business entity intervened to pursue the appeal.  Detention Watch Network v. ICE, 2019 WL 442453 (S.D.N.Y. February 5, 2019).  In this post I analyze the decision and discusses its implications.


I. Detention Watch Network v. ICE

By FOIA request, the Detention Watch Network (“Detention Watch”) and the Center for Constitutional Rights (“CCR”) sought a records from ICE regarding the agency’s “Detention Bed Mandate.”[1]  On January 30, 2014, plaintiffs sued to compel the Government’s response.  After consulting with the GEO Group, Inc. (“GEO”) and CoreCivic, private detention facility operators, ICE invoked FOIA Exemption 4 to withhold “unit prices,” “bed-day rates” and “staffing plans” from records of the Government’s contracts with the two entities.[2]

On July 13, 2016, the District Judge ruled that Exemption 4 did not protect such information from disclosure.  Detention Watch Network v. ICE, 215 F.Supp.3d 256 (S.D.N.Y. 2016).  The Government decided to forgo an appeal.  The Court granted GEO and CoreCivic leave to intervene to pursue an appeal, but precluded Intervenors from supplementing the record or conducting discovery.  The order to produce the records was stayed pending the appeal’ resolution.  On February 8, 2017, the Second Circuit dismissed the appeal for lack of standing.  Dkt No. 16–4091, 2017 WL 4122728 (2d Cir. Feb. 8, 2017) (unreported).[3]   The appellants were denied en banc review.  GEO, proceeding alone, unsuccessfully sought certiorari in the Supreme Court. GEO Group, Inc. v. Detention Watch Network, — U.S. —, 138 S.Ct. 317 (Oct. 10, 2017).

The District Court awarded attorney’s fees to plaintiffs for the District Court litigation.  Plaintiffs then sought fees for the appellate proceedings.  The Government disclaimed responsibility for such fees because it had not been a party to the appeal and its interests had diverged from those of the Intervenors’. The Intervenors argued that FOIA does not authorize attorneys’ fees awards against non-governmental parties.

The Court held that attorney’s fees could be awarded against the Government.  In its view, the plain meaning of FOIA’s attorney fee provision supported such a result.  The provision permitted a court to “assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under [FOIA] in which the complainant has substantially prevailed.”  5 U.S.C. § 552(a)(4)(E) (emphasis added by the Court).  The case had been a FOIA action “[t]hroughout the proceedings,” and “[n]othing in the statutory language confines its reach to parts actively litigated by or against the United States.”  Detention Watch, 2019 WL 442453 at *3. Moreover, in its view FOIA’s “strong policy of disclosure” is “better served by reimbursing plaintiffs” who, as appellees, were defending a lower court judgment in their favor.  Id. at *4.

Acknowledging the absence of a case on point, the Court nevertheless concluded the caselaw and equitable principles supported a fee award against the Government.  First, the court noted that another court had awarded attorneys’ fees against the Government where intervenors had conducted the litigation.  Id. (citing Anderson v. Sec’y of Health & Human Services, 80 F.3d 1500, 1505 (10th Cir. 1996)).  Second, principles of equity supported holding the Government responsible for fees, because plaintiffs had disseminated the information obtained to the general public.  Id.[4]  Thus, in a sense the plaintiffs had acted as “private attorneys general.”[5]  Third, the Government had not opposed the GEO/CoreCivic motion to intervene and had acquiesced in the District Court’s stay of its order.  Id.

The Government cited Judicial Watch v. Department of Commerce, 470 F.3d 363 (D.C. Cir. 2006).  There the Government had argued that time a FOIA claimant spends in disputes with non‑governmental third parties over issues the Government had neither raised nor pursued, cannot form the basis of a fee award under FOIA’s attorneys’ fee provision.  Focusing on the statutory term “reasonable,” the Government argued that charging it for litigation costs over which it had no control was “manifestly unfair,” and thus could not qualify as “reasonable.”  Id. at 373. The Court cited several cases for the proposition that “an award of attorney fees against the government is not appropriate for those phases of litigation in which the plaintiff is opposed solely by third parties.” Id.[6]  It ultimately held that the District Court “went too far in requiring the government to pay fees for the time spent by Judicial Watch litigating disputes with third parties in those situations in which (1) the litigation disputes between Judicial Watch and the third parties were not initiated or pursued by [the agency], (2) the third parties were not represented by [the agency], and (3) [the agency] had neither authority nor control over the third parties.” Id. at 374-75.

More specifically, Judicial Watch had sought a wide array of material concerning several such trade missions, to pursue its suspicions that the Department of Commerce had sold seats on secretarial “trade missions” in exchange for contributions to the Democratic National Committee (“DNC”).  Id. at 366.  Due to the Department’s inadequate search for documents, the District Judge had permitted extensive discovery.  Judicial Watch had issued numerous document requests and deposed nearly 20 individuals, including current and former Department of Commerce and DNC employees and suspected trade mission participants.  The third parties’ resistance to those discovery demands led to protracted disputes.  Id. at 367.  The Court of Appeals held that attorneys’ fees could not be awarded against the Government for such disputes.  Id. at 372-75.

Judge Schofield found Judicial Watch inapposite.   Unlike in Judicial Watch, the Detention Network and CCR were seeking fees for their defense of a judgment invalidating the Government’s invocation of Exemption 4, not for ancillary proceedings they had initiated. Detention Watch, 2019 WL 442453 at *5.

II.  Observations

Five observations are warranted.

First, in 1974, when Congress added the attorney’s fees provision to FOIA,[7] neither business entities’ rights to prevent release of their proprietary information in response to FOIA requests nor their entitlement to notice of the prospect of such records’ release had been established.  Only in 1979 did the Supreme Court hold that private entities could bring “reverse FOIA” actions to challenge the Government’s failure to invoke Exemption 4 as arbitrary and capricious.  Chrysler Corp. v. Brown, 441 U.S. 281, 317-18 (1979).  And only in 1987 did Executive Order 12600, 52 Fed. Reg. 23781 (June 23, 1987), ensure private entities notice and an opportunity to be heard before an agency released their proprietary information to satisfy a FOIA request.  Thus, when Congress enacted FOIA’s attorney’s fees provision, it had little reason to contemplate FOIA litigation conducted without active Government participation.  The extensive discussion of attorneys’ fees in the Senate Report accompanying the bill that would ultimately be enacted reflects an assumption that FOIA litigation would involve the Government.[8]

Congress revised FOIA’s attorneys’ fees provision in 2007, Openness Promotes Effectiveness in Our National Government Act Of 2007, Pub. L. 110-175, 121 Stat. 2524,  §4 (2007), responding to Bukhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598 (2001). The amendments merely refined the definition of the term “substantially prevailed,” the trigger for plaintiffs’ eligibility for fees.  See Sen. Rep. No. 110–59, at 4 (April 30, 2007).  Congress did express concerns about Government misconduct in asserting a right to withhold records only to relent on the eve of court proceedings, i.e., misconduct in litigation the Government was conducting.  Id. at 4, n.3.  But the amendments were silent regarding whether the Government was subject to attorneys’ fees for aspects of a litigation conducted at the behest of private entities largely to protect their private interests.  Indeed, were Congress familiar with Judicial Watch v. Department of Commerce, 470 F.3d 363 (D.C. Cir. 2006), and the precedent it cited, it might well have believed that courts would continue to interpret the FOIA attorneys’ fee provisions as not reaching FOIA litigation solely conducted by third parties.[9]

Second, perhaps Judge Schofield’s ruling is limited to circumstances in which intervenors solely take an appeal without having the power to supplement the record.  But if not, her ruling could have significant consequences.  Unlike litigation over most exemptions, Exemption 4 litigation can necessitate evidentiary proceedings.[10]  Given the relevance of factual matters about the nature of competition in a particular industry and the competitive impact public disclosure of proprietary information will have, Exemption 4 cases can be quite fact intensive.  Indeed, recent developments suggest that there may be an increase in the number of evidentiary hearings in Exemption 4 cases.[11]  And the evidence regarding the facts at issue in such cases will not be those within the Government’s possession, but in the hands of business entities.

For a sense of the magnitude of the financial obligations the Detention Watch holding may foretell, consider a slightly modified version of the course of litigation in Food Marketing Institute v. Argus Leader.[12]   After summary judgment and appellate litigation, the case was remanded to the District Court.  The District Judge concluded that the factual disputes could be resolved only by holding an evidentiary hearing. Though the Government remained in the case to conduct the hearing, suppose it had not?  The Food Marketing Institute, unbloodied and unbowed, would surely have persevered and tired the case itself.  And, indeed, after the Government in fact relented following the evidentiary hearing, the Food Marketing Institute appealed the adverse judgment to the Eighth Circuit, and then successfully sought certiorari in the U.S. Supreme Court — all, apparently, without Government involvement.[13]  Plaintiff Argus Leader’s attorneys’ fees after the Government stopped participating in the litigation will no doubt be substantial, and in the modified scenario in which the evidentiary hearing is conducted solely by the Food Marketing Institute, the Government would have remained liable for plaintiffs’ costs in conducting the evidentiary hearing.  In either scenario, Food Marketing Institute’s litigation decisions are clearly motivated by the grocery retail industry’s own interests, not the Government’s.[14]  If Argus Leader prevails in the Supreme Court (as it should),[15] will the federal government have to bear its attorneys’ fees?  (Indeed, in terms of attorneys’ fees, if the Government is for plaintiffs’ attorneys’ fees regardless of its continued participation in litigation, all the Government will ever accomplish by declining to pursue a case is ceding all control over the extent of the litigation, and thus the amount of attorneys’ fees for which the Government is accountable.)

Of course, if all courts held that business entities lack standing to oppose FOIA plaintiffs’ requests for documents from the Government, FOIA litigation without Government involvement would rarely occur.  But it would be odd for an entity to lack Article III standing to challenge the public release of proprietary information essential to its competitive position.[16]  Indeed, “reverse FOIA” cases are premised of just such a theory of standing.

Third, the Court’s analysis of FOIA’s purpose is incomplete.  FOIA indeed embodies a strong policy of disclosure, but not of disclosure at all costs.  FOIA’s pro-disclosure policies may not extend to requiring the Government to pay FOIA plaintiffs’ attorneys fees in litigation pursued by a private entity despite the Department of Justice’s conclusion that such litigation is not in the interest of the United States.[17]  Indeed, at points the Senate Report accompanying the 1974 FOIA Amendments suggests that attorneys’ fees, in part, are to serve as a disincentive to the Government for pursuing meritless litigation positions.  The Committee quoted one witness’ testimony at its hearings on the bill: “If the government had to pay legal fees each time it lost a case, it would be much more careful to oppose only those areas that it had a strong chance of winning.” S. Rep. No. 93-854, 93d Cong., 2d Sess. 16 (May 16, 1974).[18]  Statutory purposes and admonitions to construe statutes liberally to serve those purposes do not answer the question of how far those purposes are to be pursued in light of countervailing considerations.[19]  One countervailing consideration is the principle that the Government should not be liable for the conduct of litigation by intervenors pursuing their own interests, ones at odds with the Government’s view of its interests.  Granted, the FOIA attorneys’ fee provision differs from the Equal Access to Justice Act, 28 U.S.C. §2412, which makes the Government responsible for attorney’s fees only if the Government’s position in not “substantially justified,” id. at §2412(d).

Fourth, in exemption 4 cases, the Government is simply the stakeholder of information subject to a contest between two opposing parties — in a sense such cases are a type of in rem proceeding in which to “thing” at issue is a business’ proprietary information held within Government files.  Why should the Government, essentially a stakeholder, be required to take a position in a dispute between two private parties over the proprietary information of one of the parties?  Arguably, the Government should not have to seek to produce the documents during the pendency of the dispute or oppose a private party’s intervention in a proceeding to protect it rights, on pain of paying the FOIA plaintiffs’ attorneys fees.  And such a requirement may lead the Government to interpose perfunctory oppositions to intervention motions and motions for stays pending appeal, so that the Government need not bear plaintiffs’ attorneys’ fees for litigation in which the Government has little stake.  This may deprive the judges of the Government’s honest appraisal of the merits of such motions.[20]

Fifth, given that FOIA does not provide for attorneys’ fees against private entities that seek to vindicate their own interests through opposing FOIA requests for their proprietary information, Judge Schofield was faced with deciding upon a second-best solution — should the Government bear the plaintiffs’ attorneys fees or should plaintiffs be left uncompensated?  Congress, of course, can craft an optimal solution.  It could preclude a private party from continuing to contest a FOIA requester’s entitlement to documents absent continued Government involvement.  Alternatively, Congress could permit private intervenors to independently continue FOIA litigation, but require them to bear the cost of prevailing plaintiffs’ attorneys’ fees.  This solution would further FOIA’s pro-disclosure policy of enabling FOIA requesters to pursue litigation (which Judge Schofield was attempting to do), while not requiring the Government to bear the costs occasioned by the intervenors’ litigating positions.

Granted, the latter course may have drawbacks of its own.  Such an approach impose a burden on small businesses or non-profit corporations whose proprietary information the government holds.[21]  And even with respect to larger business entities or industry associations, such as GEO, CoreCivic, and the Food Marketing Institute, the potential for incurring potential attorneys’ fees to FOIA plaintiffs (while having no prospect of recovering attorneys’ fees should they prevail over the plaintiffs) might make such entities less willing to volunteer information to the Government or even, perhaps, less willing to participate in programs that require provision of proprietary information.


Detention Watch raises an interesting questions.  The optimal solution may well have to be crafted by Congress.

 * * * * * * * *

[1] Sixty-five members of Congress have described the mandate as a requirement that ICE maintain a yearly average daily population of approximately 34.000 individuals in detention.  See, Letter from the Honorable Theodore E. Deutsch, et al. to the Honorable John Carter and the Honorable Lucille Roybal-Allard dated March 15, 2018.

[2] FOIA Exemption 4 protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” 5 U.S.C. § 552(b)(4).

[3] The Court explained that Intervenors had not “suffered an invasion of a legally protected interest,” citing Tachiona v. United States, 386 F.3d 205, 210–11 (2d Cir. 2004), and Chrysler Corp. v. Brown, 441 U.S. 281, 292–93 (1979) (“FOIA by itself protects the submitters’ interest in confidentiality only to the extent that this interest is endorsed by the agency collecting the information”).  The latter case holds that FOIA does not provide a cause of action for entities seeking to protect their proprietary records from disclosure, but that such entities have both standing and an APA cause of action to prevent an agency from releasing their proprietary records under FOIA. Chrysler Corp. v. Brown, 441 U.S. at 317-18.  Given the summary disposition, and the seeming unhelpfulness of Chrysler Corp. v. Brown, one might have expected Tachiona to be a case regarding FOIA standing (or at least standing based on a proprietary interest in information in the hands of Government).  It was not.  In Tachiona the Second Circuit held that the United States, as Intervenor, had standing to appeal a default judgment entered against the Zimbabwe African National Union–Patriotic Front for violations of the Alien Tort Claims Act, the Torture Victim Protection Act of 1991, and international human rights norms.  386 F.3d 205 at 208-209.

[4] Does this mean that a FOIA plaintiff who does not disseminate the information to the public is categorically barred from recovery when its litigation costs are solely attributable to litigation pursued by intervenors?

[5] When Congress added the attorneys’ fees provisions, it seemed to view media and public interest group FOIA plaintiffs as “private attorneys general.” S. Rep. No. 93-854, 93d Cong., 2d Sess. 18 (May 16, 1974) (“Generally, if a complainant has been successful in proving that a government official has wrongfully withheld information, he has acted as a private attorney general in vindicating an important public policy”), reprinted in, HOUSE COMM. ON GOVERNMENT OPERATIONS & SENATE COMM. ON THE JUDICIARY, FREEDOM OF INFORMATION ACT AND AMENDMENTS OF 1974: SOURCE BOOK: LEGISLATIVE HISTORY, TEXTS, AND OTHER DOCUMENTS 153, 171 (March 1975)(“1975 SOURCEBOOK”).

[6] Watson v. County of Riverside, 300 F.3d 1092, 1097 (9th Cir.2002); Love v. Reilly, 924 F.2d 1492 (9th Cir.1991); Chemical Mfrs. Ass’n v. EPA, 885 F.2d 1276, 1280 (5th Cir.1989); Avoyelles Sportsmen’s League v. Marsh, 786 F.2d 631 (5th Cir.1986). The D.C. Circuit asserted that the principle had been noted but not applied in Anderson v. Secretary of Health & Human Services., 80 F.3d 1500, 1505 (10th Cir. 1996).

[7] Freedom of Information Act Amendments of 1974, Pub. L. 93-502, 88 Stat. 1561, §(b)(1) (amending 5 U.S.C. 552(a)(3)).

[8] Sen. Rep. No. 93-854, 93d Cong., 2d Sess. (May 16, 1974), reprinted in, 1975 SOURCEBOOK, supra note 5, 153, 169-72.

[9] I have suggested in another blogpost that Congress has institutionalized notification of trends in FOIA litigation. Bernard W. Bell, Oh SNAP!: The Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part III-A), Section III,  36 YALE J. ON REG.: NOTICE & COMMENT (Sept. 23, 2018).  And the Senate Report accompanying the 2007 enactment certainly exhibits some familiarity with the Government’s attorneys’ fees obligations and the outlays to satisfy attorneys’ fee awards.  Sen. Rep. No. 110–59, at 4, 8-10 (April 30, 2007).

[10] Margaret B. Kwoka, The Freedom Of Information Act Trial, 61 AM. U. L. REV. 217, 269-71 (2011); Bernard W. Bell, Oh SNAP!: The Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part III-B), 36 YALE J. ON REG.: NOTICE & COMMENT (Oct. 10, 2018).

[11] See, Animal Legal Defense Fund v. FDA, 836 F.3d 987 (9th Cir. 2016)(en banc) (jettisoning Ninth Circuit precedent that mandated deferential review of district court determinations on summary judgment in FOIA cases); Animal Legal Defense Fund v. FDA, 839 F.3d 750 (9th Cir. 2016)(holding that affidavits provided an insufficient basis to choose between experts’ assessment the competitive impact of the release of information in a case involving the validity of the agency’s invocation of FOIA Exemption 4).

[12] Argus Media Leader v. U.S. Department of Agriculture, 900 F.Supp.2d 997 (D.S.D. 2016), rev’d and remanded, 740 F.3d 1172, 1174 (8th Cir. 2014), Argus Leader Media v. United States Department of Agriculture, 224 F.Supp.3d 827, 833-34 (D.S.D. 2016), aff’d, Food Marketing Institute v. Argus Leader Media, 889 F.3d 914 (2018), cert. granted, 2019 WL 166877 (Jan. 11, 2019).

[13] Bernard W. Bell, Oh SNAP!: The Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part I), 36 YALE J. ON REG.: NOTICE & COMMENT (Sept. 6, 2018).

[14] Indeed, another group of food retailers have sued the USDA to enjoin it from providing aggregate redemption data in light of the upcoming plan to allow e-retailers to participate in the program.  Complaint, Texas Retailers Association v. U.S. Department of Agriculture, Dkt No. 18 Civ. 659, ¶31 (August 6, 2018)(available in, Law360 database, “Texas Retailers Sue USDA to Keep SNAP Data Confidential” (August 6, 2018)).  And the food retailers unsuccessfully lobbied Congress to exempt such data from disclosure.  Section 4026 of the Farm Bill, as introduced in the House, provided that “[a]ny transaction data  that contains information specific to a retail food store, a retail food store location, a person, or other 2 entity shall be exempt from the disclosure requirements” of FOIA. HR2 (proposed).  The provision was dropped from the statute as enacted.  See, Agriculture Improvement Act of 2018, Pub. L. 115-334, — Stat. — (2018).

[15] I discuss the case in a series of posts on this blog, entitled Oh SNAP!: The Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4.

[16] See, 100Reporters LLC v. United States Department of Justice, 307 F.R.D. 269, 275-76 (D.D.C. 2014).

[17] It is not coincidental that Government lawyers will litigate cases to an adverse judgment, but not pursue an appeal.  The Solicitor General must authorize appeals, after reviewing the case to determine whether it is in the interest of the United States to pursue an appeal. U.S. DEPARTMENT OF JUSTICE, JUSTICE MANUAL § 2-2.121; see, id. §§ 2-2.110 to 2-2.111, accessible at .

[18] 1975 SOURCEBOOK, supra note 5, at 169.

[19] See, e.g., Rodriguez v. United States, 480 U.S. 522, 525–526, (1987)(per curiam)(“[b]ut no legislation pursues its purposes at all costs . . .  it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law”); In Re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987) (“finding the meaning of a statute is more like calculating a vector (with direction and length) than it is like identifying which way the underlying ‘values’ or ‘purposes’ point (which has direction alone). . . . Too much ‘liberality’ will undermine the statute as surely as too literal an interpretation would).

[20] Indeed, to return to the Food Marketing Institute scenario, if the Solicitor General submits a brief offering the Government’s views on the proper scope of Exemption 4, and those views align more with Food Marketing Institute than the FOIA plaintiff, should that make the United States responsible for the FOIA’s plaintiffs attorneys’ fees after the Government stopped pursuing the litigation?  That would be quite a penalty to pay for offering the Government’s views on a major case before the Supreme Court.

[21] For a case involving a non-profit corporation, see New Hampshire Right to Life v. U.S. Dept. of Health and Human Services, 778 F.3d 43, 50 (1st Cir. 2015), cert. denied, —U.S. —, 136 S.Ct. 383 (2015) (holding that non-profit corporations, like Planned Parenthood, could have confidential commercial information which, if in Government files, could provide a basis for invocation of Exemption 4).


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