UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FUNCTIONAL GOVERNMENT
INITIATIVE,
Plaintiff,
Civil Action No. 22-3273 (CKK)
v.
FEDERAL TRADE COMMISSION,
Defendant.
MEMORANDUM OPINION
(September 22, 2026)
Plaintiff Functional Government Initiative ("Plaintiff') moves the Court to award
attorney's fees and costs pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. §
552(a)(4)(E), against Defendant Federal Trade Commission ("Defendant"). Upon consideration
of the parties' submissions, 1 the relevant legal authority, and the entire record, the Court shall
DENY Plaintiff's motion.
I. BACKGROUND
On August 7, 2022, Plaintiff submitted a FOIA request to Defendant seeking six categories
of records regarding a baby formula shortage. Pl.'s Mot. at 1; Def's Opp'n at 2. Defendant's
FOIA office designated Plaintiff's request as "FOIA-2022-01401" and treated it as complex
because it sought records from multiple offices separate from Defendant's FOIA office. Def.'s
Opp'n at 2 (citing Kappler Deel. ,r,r 9-10, 13; Dkt. No. 35-1 at 1). On August 12, 2022,
Defendant's FOIA office sent a request for potentially responsive documents to the five FTC
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The Court' s consideration has focused on Plaintiffs Motion for Attorney Fees and Costs, Dkt. No. 34 ("Pl. 's Mot."); the Declaration of Christopher Stanley, Dkt. No. 34-3 ("Stanley Deel."); the Declaration of Richard W. Goeken, Dkt. No. 34-5 ("Goeken Deel."); Defendant's Opposition, Dkt. No. 35 ("Def.'s Opp'n"); the Declaration of Burke W. Kappler, Dkt. No. 35-4 ("Kappler Deel."); and Plaintiffs Reply, Dkt. No. 39 ("Pl. 's Reply").
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Commissioners' Offices and to the Office of Public Affairs ("Public Affairs"). 2 Id. Defendant's
FOIA office received documents from Commissioner Slaughter's office on August 29 and
Commissioner Bedoya's office on September 6. Id. (citing Kappler Deel. ,r 11).
On September 6, 2022, Plaintiff inquired about the status of its FOIA request. Pl.' s Mot.
at 2 (citing Stanley Deel. ,r 3). The next day, Defendant responded with a letter stating that it
would be unable to respond to Plaintiffs request within the statutory 20-business day deadline
because of "unusual circumstances," namely, the "need to search for and collect the requested
records from field facilities or other establishments that are separate from the office processing the
request." Def.'s Extension Letter, Dkt. No. 35-2 at 2-3. Defendant's letter informed Plaintiff that
it was "continuing to process [the] request," that Plaintiff could "seek dispute resolution services"
from Defendant's Public Liaison, and that Plaintiffhad the option to "narrow [its] request to reduce
the necessary response time." Id. at 3. One of Plaintiffs representatives responded to Defendant
that same day, saying, "Please let me know if you need anything more from me as you process this
request." Stanley Deel. ,r 8.
On September 7, 2022, Defendant's FOIA office followed up with the offices that had not
yet responded to determine the status of their searches. Def.'s Opp'n at 3 (citing Kappler Dec. ,r
15). On September 9, Defendant's FOIA office learned that another employee in Public Affairs
potentially had responsive records, so it sent another request for documents to Public Affairs.
Kappler Dec. ,r 15. These offices continued to send in batches of potentially responsive material.
See id. ,i 16. From October 2, 2022, to November 2, 2022, Defendant loaded 2,182 pages of
records received from the Commissioners' offices and Public Affairs into FOIAXpress to be
2 Defendant explains that these offices were chosen because Plaintiffs FOIA request expressly sought records from
Commissioners or their staffs about the infant formula shortage, as well as records pertaining to news media inquiries-which Public Affairs handles-"about meat and poultry." Id. (quoting Dkt. No. 35-1 at 1-2 (categories 2-6) and citing Kappler Deel. ,i 10).
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reviewed for responsiveness and FOIA exemptions. Id. ,r 17. Once uploaded, these documents
were ready for review for responsiveness and any applicable FOIA exemptions. Id.
Plaintiff filed this lawsuit on October 26, 2022, alleging that Defendant failed to make a
timely determination regarding its request and had wrongfully withheld records. See Dkt. No. 1.
After Plaintiff filed suit, Defendant "continued to search for and process records in the
normal course." Kappler Deel. ,r 19. Between November 18, 2022, and November 22, 2022,
Defendant's FOIA office identified and sent requests for documents to additional agency offices
that it had identified as potential custodians following discussions with the original set of offices
contacted and after conducting additional research. Id. Defendant's FOIA office began receiving
responses from these potential custodians on November 23 and completed collecting records from
these custodians on January 9, 2023. Id. ,r 20. "In total, 4,313 potentially responsive records were
collected and were loaded into Relativity on January 10, 2023; this total included both the
documents collected during the initial search of the Commissioners' offices and Public Affairs
plus the documents collected from the second search performed in November 2022." Id.
Defendant's FOIA office completed an initial review for responsiveness by February 14, 2023,
and began reviewing the potentially responsive records for privilege and FOIA exemptions. Id.
Defendant's responsiveness review resulted in Defendant identifying 1,035 potentially
responsive records (comprising 11,035 pages). Id. ,r 21. At the time, Defendant's FOIA office
considered its search complete. Id.; see also Joint Status Report, Dkt. No. 19. However, upon
review of the records, Defendant's FOIA office "learned that still other FTC offices might possess
responsive materials." Kappler Deel. ,r 22. So Defendant sent requests to these additional offices.
Id. By May 12, 2023, Defendant had collected 8,387 more potentially responsive records, and by
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June 29, 2023, Defendant had completed an initial responsiveness review that identified 4,429 of
the 8,387 records as potentially responsive. Id.
In total, Defendant collected 12,700 records from August 2022 through May 2023 from 18
agency offices resulting from its August 2022 through March 2023 requests for documents.
Kappler Deel. ,r 23. Defendant identified 5,464 of these 12,700 records as initially responsive. Id.
However, that number decreased following discussions with Plaintiff regarding the time required
to review the records and their priorities for production. Id.
Plaintiff and Defendant conferred and agreed on a production schedule, which they filed
with the Court on March 24, 2023. See Joint Status Report, Dkt. No. 20. Defendant then began
making monthly productions, which the parties later agreed could be changed to bimonthly
productions. Kappler Deel. ,r 26 (citing Joint Status Report, Dkt. No. 26). Defendant and Plaintiff
continued to confer during this process. See id. ,r,r 27-31.
Defendant made its final production to Plaintiff on June 20, 2024. Id. ,r 32; Joint Status
Report, Dkt. No. 31 at 1. Plaintiff completed its review of Defendant's production and, on
December 16, 2024, informed the Court that it "[ did] not wish to pursue issues with the
productions, including any challenges to the withholdings of certain records by [Defendant] based
on FOIA exemptions," and that "[t]he only remaining issue to be resolved is the issue of Plaintiffs
request for attorney's fees and costs." Joint Status Report, Dkt. No. 33 at 1. The parties proceeded
to brief Plaintiffs request for attorney's fees and costs, and the matter is now ripe for decision.
II. LEGAL ST AND ARD
Courts "may assess against the United States reasonable attorney fees and other litigation
costs reasonably incurred" in FOIA cases in which "the complainant has substantially prevailed."
5 U.S.C. § 552(a)(4)(E)(i). A complainant has "substantially prevailed" if they have obtained
relief through either (1) "a judicial order, or an enforceable written agreement or consent decree,"
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or (2) "a voluntary or unilateral change in position by the agency, if the complainant's claim is not
insubstantial." Id. § 552(a)(4)(E)(ii). This case concerns Plaintiff's eligibility under the second
prong of this test, which codifies what is known as the "catalyst theory." Grand Canyon Tr. v.
Bernhardt, 947 F.3d 94, 95 (D.C. Cir. 2020) (quoting Brayton v. Office of the US. Trade
Representative, 641 F.3d 521, 524-25 (D.C. Cir. 2011)).
III. ANALYSIS
The question under the catalyst theory is whether Plaintiff has shown that the "institution
and prosecution of [this] litigation caused [Defendant] to release the documents [that Plaintiff
ultimately] obtained." Grand Canyon, 947 F.3d at 97 (citation modified). Plaintiff cannot rely
solely on the fact that it received "the bulk of the documents responsive to its request only after it
filed suit," as "the mere filing of the complaint and the subsequent release of the documents is
insufficient to establish causation." Id. (citation omitted). Instead, Plaintiff "has the burden of
showing that it is more probable than not that the government would not have performed the
desired act absent the lawsuit." Id. (citation omitted).
To meet this burden, Plaintiff must "overcome the presumptive 'inference' that
[Defendant] responded in good faith to [Plaintiff's] FOIA requests." Inst. for Energy Rsch. v.
Dep 't of Treasury, No. 22-cv-03653 (DLF), 2024 WL 5118225, at *5 (D.D.C. Dec. 16, 2024)
(citing Pyramid Lake Paiute Tribe of Indians v. US. Dep 't of Just., 750 F.2d 117, 120 (D.C. Cir.
1984)). As applied to Defendant, this presumption of good faith is bolstered by evidence in the
record showing that Defendant initiated its search for responsive records shortly after receiving
Plaintiffs request-before Plaintiff initiated litigation-and never suggested to Plaintiff that it
would fail to comply with the request. 3 See id. ("Because the record demonstrates that [the agency]
3 See Def.'s Opp'n at 8-9 (citing Kappler Deel., Dkt. No. 35-4 ,i,i 10-14; Extension Letter, Dkt. No. 35-2).
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initiated its search and review process before any action was filed, [the plaintiff] cannot prove that
its litigation catalyzed the agency's response."); Grand Canyon, 947 F.3d at 97 (finding that
plaintiff did not satisfy catalyst theory where the agencies "had begun processing the plaintiffs
request well before [the] lawsuit was initiated" and never "suggested [they] would fail to comply
with the request"); Env 't Integrity Project v. United States Env 't Prot. Agency, 316 F. Supp. 3d
320,328 (D.D.C. 2018) (JDB) (finding that agency made good faith effort where evidence showed
a "diligent ongoing process that began before the initiation of the lawsuit"); Gov 't Accountability
& Oversight v. Sec. & Exch. Comm 'n, No. 23-cv-3268 (RC), 2024 WL 4828107, at *4 (D.D.C.
Nov. 19, 2024) (finding that plaintiff could not meet burden under catalyst theory where the agency
"had already begun processing the FOIA request" before plaintiff initiated suit).
Plaintiff makes three arguments in an effort to show that its suit catalyzed Defendant's
production of the requested records. The Court shall address these arguments in tum. Upon doing
so, the Court concludes that Plaintiff has not met its burden of showing that its lawsuit was the
catalyst for Defendant's ultimate production. Accordingly, the Court shall DENY Plaintiffs [34J
Motion for Attorney Fees and Costs.
1. Plaintiff has not shown that Defendant's actions at the administrative level
demonstrate that Defendant likely would not have provided the records
requested by Plaintiff in the absence of this suit.
Plaintiffs first argument is that "Defendant's actions at the administrative level" show that
Defendant "likely would not have provided the records requested by Plaintiff in the absence of this
suit." Pl.' s Mot. at 6-7. To support this argument, Plaintiff relies on claims that Defendant (i)
"missed the statutory 20-working day deadline under FOIA for making a determination on
Plaintiffs request," (ii) did not "invoke the existence of unusual circumstances within that 20-day
period to obtain an additional 10-day extension," (iii) "did not provide a date by which documents
would be provided" when it "belatedly attempted to invoke unusual circumstances," and (iv)
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"broke off further communications" with Plaintiff "[a]fter providing its letter to Plaintiff on
September 7, 2022." Id.
Defendant argues that "courts do not construe FOIA's twenty-day determination deadline
to be a strict liability rule and often deny plaintiffs claims for fees even where agencies respond
to FOIA requests far beyond that statutory deadline." Def.'s Opp'n at 11 (collecting cases).
Defendant also asserts that "the FOIA office's September 2022 extension letter-provided nearly
two months before [Plaintiff's] lawsuit-rebuts [Plaintiffs] catalyst argument, as it expressly
informed [Plaintiff] that the office was 'continuing to process your request at this time."' Id.
(quoting Extension Letter, Dkt. No. 35-2 at 2).
The Court concludes that Defendant's actions at the administrative level do not indicate
that this litigation catalyzed its response to Plaintiffs FOIA request. Plaintiffs argument
regarding FOIA's 20-day deadline is unavailing because "some amount of delay in excess of the
statutory limit is, regrettably, a common feature of the FOIA process." Am. Wild Horse Campaign
v. United States Bureau ofLand Mgmt., No. 22-cv-3061 (CRC), 2024 WL 3967256, at *3 (D.D.C.
Aug. 26, 2024). As the D.C. Circuit has observed, the realities of processing FOIA requests
"would make a strict-liability rule for agencies that miss the 20-day FOIA deadline both
unnecessarily harsh and potentially quite expensive." Harvey v. Lynch, 178 F. Supp. 3d 5, 8
(D.D.C. 2016), aff'd sub nom. Harvey v. Sessions, No. 16-5200, 2017 WL 4220323 (D.C. Cir. July
14, 2017). Defendant has shown that it began processing Plaintiff's request upon receipt. Kappler
Deel. ,r,r 9-10. And it continued doing so leading up to Plaintiffs lawsuit and after Plaintiff
initiated its lawsuit. Id. ,r,r 19-31. Defendant also informed Plaintiff that Plaintiff's request
presented "unusual circumstances" because it required Defendant to "search for and collect the
requested records from field facilities or other establishments that [were] separate from
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[Defendant's office]." Extension Letter, Dkt. No. 35-2 at 3. In doing so, Defendant expressly
informed Plaintiff that it was "continuing to process [its] request" and that Plaintiff could "narrow
[its] request to reduce the necessary response time" or "seek dispute resolution services from
[Defendant's] FOIA Public Liaison." Id. Plaintiff cannot overcome this evidence by merely
pointing to a missed statutory deadline.
Accordingly, the Court concludes that Defendant's actions at the administrative level do
not indicate that Plaintiffs litigation catalyzed Defendant's response because the record shows
that Defendant promptly started processing Plaintiffs request upon receipt and continued to do so
until making its final production.
2. Plaintiff has not shown that Defendant would have produced fewer than all
the records it ultimately provided to Plaintiff had Plaintiff not initiated this
Ii tigation.
Second, Plaintiff argues that "even if ... Defendant would have completed some search
and produced some records in the absence of this litigation, ... it is clear that Plaintiff would not
have received all of the records to which it was entitled under FOIA absent this suit." Pl.'s Mot.
at 7 (emphasis in original). To support this argument, Plaintiff cites the growing number of
potentially responsive records identified by Defendant throughout its search. Specifically, Plaintiff
emphasizes that Defendant first stated in February 2023 "that a very preliminary search had
returned approximately 2,500 potentially responsive pages," id. citing (Goeken Deel., Dkt. No.
34-5 ,r 5); that on February 24, 2023, "Defendant stated on the record that it had completed its
search and located some 11,000 pages of potentially responsive records," id. (citing Joint Status
Report, Dkt. No. 19 at 1); and that in October 2023, "after months of discussions with Plaintiff,
during which time Plaintiff repeatedly asked about the search terms being used and the number of
records remaining to be processed," Defendant stated that it had located 55,000 pages of
potentially responsive records, id. at 8 (arguing that "[t]he fivefold increase in the number of
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potentially responsive records located is directly attributable to Plaintiffs commencing this suit
and the scrutiny of Defendant's processing of records that this litigation provided").
Defendant argues that Plaintiff "provides no evidence of a causal connection between the
lawsuit and the increase in identified potentially responsive records (or the number of records
released)." Def.'s Opp'n at 11-12. To support this argument, Defendant submits an affidavit
indicating that "the increase [in potentially responsive records] was due to the FOIA Unit learning
from the documents initially collected that additional agency offices likely possessed responsive
records." Id. at 12 (citing Kappler Deel., Dkt. No. 35-4 ,r,r 19, 22). According to Defendant, "[t]he
expanded search reflected the FOIA Unit's diligent and comprehensive efforts to locate potentially
responsive documents throughout the Commission, as is done as part of the FTC's ordinary FOIA
search and processing work regardless of whether a lawsuit is filed." Id.
Plaintiffs evidence is insufficient to rebut Defendant's asserted legitimate explanation for
the increase in potentially responsive records. First, it appears that Plaintiffs characterization of
the evidence in its Motion is not entirely accurate. In its Motion, Plaintiff asserts that in February
2023, Defendant "first stated that a very preliminary search had returned approximately 2,500
potentially responsive pages," and "[t]hereafter ... stated on the record that it had completed its
search and located some 11,000 pages of potentially responsive records." Pl.'s Mot. at 7 (citing
Goeken Deel. ,r 5; Dkt. No. 19 at 1). But the evidence proffered by Plaintiff shows that Defendant
first told Plaintiff that its "very early estimate" was that 11,000 pages were potentially responsive;
Defendant later told Plaintiff that there were approximately 2,500 pages remaining to be produced
but subsequently clarified that this had been in error. See Goeken Deel. ,r,r 5-7 (citing App., Dkt.
No. 34-6 at 1-4).
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More importantly, Plaintiffs argument fails to "assert something more than Post hoc, ergo
propter hoc." Cox, 601 F.2d 6. "Aside from the sequence of events, there is no reason to think
that (Defendant] would have failed to release [all of the records to which Plaintiff was entitled]
had [Plaintiff] not filed its lawsuit." WP Co. LLC v. US. Dep 't of State, 506 F. Supp. 3d 11, 16
(D.D.C. 2020) (JEB). Plaintiff does not identify with any specificity the records it claims it would
not have received had it not been for its lawsuit. Nor does Plaintiff offer any argument-let alone
evidence-to undermine Defendant's legitimate explanation, which is that the universe of
potentially responsive records continued to grow as Defendant conducted its search. See Def.'s
Opp'n at 11-12. Defendant asserts, without objection, that such an occurrence is part of its
"ordinary FOIA search and processing work regardless of whether a lawsuit is filed." Id. at 12.
In other words, Plaintiff has failed to rebut Defendant's evidence showing that the increase in
potentially responsive records "was in reality pursuant to [Plaintiffs] administrative request," not
Plaintiffs litigation. Weisberg v. US. Dep 't ofJust., 745 F.2d 1476, 1497 (D.C. Cir. 1984).
Accordingly, the Court concludes that Plaintiff has not shown that Defendant would have
produced fewer than all the records it ultimately provided to Plaintiff had Plaintiff not initiated this
litigation, and therefore this argument does not support Plaintiffs request for fees and costs.
3. Plaintiff has not shown that its lawsuit is the reason Defendant used
technological resources during production.
Finally, Plaintiff argues that "once this suit caused Defendant to complete its search and
locate the full universe of potentially responsive records, only then did Defendant voluntarily
employ additional technological resources to process these potentially responsive records." Pl.'s
Mot. at 8. Plaintiffs argument stems from a representation that Defendant made in the parties'
February 16, 2024, Joint Status Report. See Dkt. No. 26. In this Report, Defendant represented
that it would "begin using a new email threading tool that will permit the identification and
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production of only 'inclusive emails,' such as the last email in a chain, thereby eliminating the
need to provide individual emails making up the chain that contain duplicative content," and that
"[d]oing so should expedite [its] document review and production process while not changing the
substance of the material produced to [Plaintiff]." Id. at 2. Plaintiff asserts that "this is the result
sought by the lawsuit and without which there can be little doubt it would not have been achieved."
Pl.' s Mot. at 8.
Defendant counters that it "did not obtain the email threading tool due to [Plaintiff's]
lawsuit; rather, the FOIA office only learned in February 2024 that this document organization
resource was available and could be used in certain FOIA matters involving large volumes of
documents." Def 's Opp'n at 12 (citing Kappler Deel. ,I,! 7, 31). Defendant argues that Plaintiff's
"suggestion that, absent this lawsuit, [it] would not have availed itself of technological resources
to speed up processing its FOIA request is pure speculation and entirely unfounded." Id.
The Court concludes that Defendant's use of technological resources to process Plaintiff's
request does not suggest, without more, that Plaintiff's lawsuit was the catalyst for Defendant's
production. Again, Plaintiff's argument fails because Plaintiff relies on nothing more than the fact
that Defendant employed certain technological resources at some point after Plaintiff filed its
lawsuit. See Cox, 601 F.2d 6 (" ... an allegedly prevailing complainant must assert something
more than Post hoc, ergo propter hoc."). Plaintiff does not provide any evidence to suggest that
Defendant would have refused to use the relevant technological resources absent Plaintiff's
lawsuit. Indeed, even if Defendant had access to the relevant technological resources before
Plaintiff filed its lawsuit, there would have been no opportunity for Defendant to use these
resources prior to Plaintiff's lawsuit because, based on the information provided in the parties'
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February 16, 2024, Joint Status Report, these resources were only applicable to the "document
review and production process," not the initial identification process. See Dkt. No. 26 at 2.
Accordingly, the Court concludes that Defendant's use of technological resources to
process Plaintiffs request does not show that Plaintiffs lawsuit catalyzed Defendant's production
because Plaintiff has provided no evidence for the Court to infer that Defendant would have
withheld these technological resources without Plaintiffs lawsuit.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff is not eligible for fees and
costs under the catalyst theory. Accordingly, it is hereby ORDERED that Plaintiffs [34] Motion
for Attorney Fees and Costs is DENIED. A separate Order shall accompany this Memorandum
Opin1on.
SO ORDERED.
Dated: September 22, 2026
COLLEEN KOLLAR-KOTELL Y
United States District Judge
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