Church of Scientology of California v. Harris
| Decision Date | 17 April 1981 |
| Docket Number | No. 80-1189,80-1189 |
| Citation | 653 F.2d 584,209 U.S.App.D.C. 329 |
| Parties | CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant, v. Patricia R. HARRIS, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert A. Seefried, Washington, D. C., with whom Earl C. Dudley, Jr., Washington, D. C., was on the brief, for appellant.
Keith A. O'Donnell, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and John R. Fisher, Asst. U. S. Attys., Washington, D. C., were on the brief for appellees.
Before ROBINSON, MacKINNON and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge MacKINNON.
The Church of Scientology of California ("Scientology") appeals from an opinion and order of the district court which denied its request for an award of attorney's fees and litigation costs under section 552(a)(4)(E) of the Freedom of Information Act ("FOIA") 5 U.S.C. § 552(a)(4)(E). The district court concluded that Scientology was not eligible for such an award because it had not "substantially prevailed" within the meaning of that section. We find that Scientology did substantially prevail and direct the district court on remand to determine whether Scientology is entitled to the fees and costs it seeks.
By letters dated December 3 and December 19, 1974, Scientology made a formal request under FOIA for all records in the possession of the Department of Health, Education, and Welfare ("HEW") relating to the Church of Scientology or its founder, L. Ron Hubbard. HEW responded on December 30, 1974 that "(n)o materials pertinent to your request could be located in the Department's Central Files Section." Scientology subsequently submitted a supplemental request on November 5, 1975, which provided additional names under which relevant files might be located, and which noted that "(t)here exists within the organizational structure of DHEW several major offices and components thereof, apparently now encompassed by the records examination undertaken by your Department in compliance with my earlier request(s)." HEW replied on December 2, 1975 that "(c)opies of your request were circulated to components of the Department except for the Food and Drug Administration and the Alcohol, Drug Abuse, and Mental Health Administration as requested in your letter." HEW stated that three card references to Scientology had been found in the files of the Office of Investigations and Security, but asserted that these references were exempt from disclosure. HEW also explicitly declared that "(n)o other component of the Department was able to locate any records pertaining to the Church of Scientology or any of the organizations listed in your request."
Scientology filed an administrative appeal. In its final agency action, by a letter dated February 17, 1976, HEW reversed in part the initial denial of the three card references, and disclosed portions thereof. HEW also explained that these cards referred to documents which originated in other agencies the FBI, the Civil Service Commission, and the FDA and stated that the request for these documents had been transmitted to the originating agencies. 1
Dissatisfied with this result, Scientology filed a complaint under FOIA in the district court on June 9, 1976 seeking de novo review of HEW's actions. On August 4, 1976, Scientology served HEW with its first set of interrogatories. In its answers to interrogatories, HEW revealed for the first time that an unspecified number of additional documents encompassed by Scientology's request existed in the files of HEW's Office of General Counsel. These documents were said to concern "litigation and other relationships between HEW and the Church of Scientology or its affiliates", and to be exempt from disclosure under 5 U.S.C. § 552(b)(5). 2 The only explanation given for withholding the documents was that
Ms. Sisk (an attorney in the OGC) knew that all records in the division's files were either documents of which Joel Kreiner (a Scientology attorney) had copies ... documents subject to the attorney-client privilege and exempt from disclosure under the Freedom of Information Act or duplicates of documents from the files of the Food and Drug Administration.
In an effort to obtain further information, Scientology noticed and took the deposition of Ms. Joanne Sisk, who was the individual identified in HEW's answers to interrogatories as having searched the Office of General Counsel's files in response to Scientology's FOIA request. At the deposition, Ms. Sisk confessed that she had not conducted an actual search of the Office of General Counsel's files until around the time that her deposition had been noticed, and that HEW's administrative response to Scientology's FOIA request and HEW's answers to interrogatories had not been based upon an actual search of the files but upon an assumption as to their contents. 3 An internal HEW memorandum also disclosed that Ms. Sisk had been aware that the Office of General Counsel's files contained documents responsive to Scientology's FOIA requests at the time the requests were being processed administratively. 4
The belated search of the files of the Office of General Counsel produced approximately 230 responsive documents. 5 Ms. Sisk's deposition resulted in the release of 116 documents to Scientology, all but eight of which were copies of envelopes, transmittal memos, or telephone message slips. It also resulted in the preparation of a Vaughn index 6 for the remaining documents which were claimed to be exempt from disclosure. On February 25, 1977, Scientology renounced its claims to 44 of the withheld documents. In June, 1977, HEW released 31 of the withheld documents following a letter by Attorney General Bell to the heads of all federal agencies informing them of new policies concerning FOIA. 7 Thus, at the time the district court ruled on the parties' cross-motions for summary judgment on February 28, 1978, 47 documents remained in dispute. The district court granted HEW's motion for summary judgment as to 45 of the documents, ordered partial disclosure of 2 documents, and directed HEW to provide additional information on three other documents.
On April 25, 1979, Scientology petitioned the district court for an award of attorney fees and litigation costs pursuant to section 552(a)(4)(E) of FOIA. The district court denied the motion on December 19, 1979. After reviewing the history of the litigation, the district court stated:
In summary, the Church obtained release of 150 documents in litigation, but of this number, 108 documents were copies of envelopes, transmittal slips and the like, and 31 others were released as a result of Attorney General Bell's letter. The Church received just fourteen documents comprising 34 pages, excluding envelopes and transmittal slips, as a result of its FOIA suit.
In this case, plaintiff only obtained through the discovery process an insubstantial part of what was sought. While the Court does not accept the defendants' argument that the plaintiff must win a majority of what is at stake in order to substantially prevail for purposes of receiving attorney's fees, the Church was largely unsuccessful in its efforts to obtain release of the withheld material. The uncovering of documents, unaccompanied by any substantial release, either voluntarily or by court order, is insufficient to demonstrate in this case that the plaintiff has substantially prevailed within the meaning of 5 U.S.C. § 552(a)(4)(E).
The failure to search files completely on receiving the initial FOIA request and to disclose the existence of the documents once they were discovered is inexcusable. This failure required the Church to resort to two sets of interrogatories and a deposition. However, HEW's actions are mitigated here by the existence of considerable other FOIA litigation by the Church, which led the agency to assume reasonably that the documents were duplicates of those available to the Church in other suits. Once defendants located this material in the Office of General Counsel, through plaintiff's discovery efforts, some material was released and a Vaughn index was prepared for the rest. Under these circumstances, HEW's delay in disclosing the existence of the documents, while regrettable, does not of itself justify an award of attorney's fees.
The Court recognizes that the "fundamental purpose of Section 552(a)(4)(E) is to facilitate citizen access to the courts to vindicate their statutory rights," but for that purpose to have any meaning, the statutory prerequisite that the plaintiff substantially prevail in the case must first exist.
Since the plaintiff has not substantially prevailed, there is no need to reach the question whether an exercise of the Court's discretion to award reasonable attorney's fees and expenses is appropriate. 8
Scientology appealed.
As the district court recognized, analysis of a section 552(a)(4)(E) 9 motion for fees and costs requires that two questions be asked and answered. 1) is the plaintiff "eligible" for such an award, and if so, 2) is it "entitled" to such an award? See Crooker v. U. S. Department of the Treasury, No. 80-1412 (D.C.Cir., October 23, 1980); Fenster v. Brown, 617 F.2d 740 (D.C.Cir.1979); Cox v. United States Department of Justice, 601 F.2d 1 (D.C.Cir.1979).
A FOIA plaintiff is eligible for a section 552(a)(4)(E) award if it has "substantially prevailed". Our cases have established that this is largely a question of causation did the institution and prosecution of the litigation cause the agency to release the documents obtained during the pendency of the litigation? See e. g., Cox, supra; Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704 (D.C.Cir.1977). As we observed in Cox :
It is true that a court order compelling disclosure of information is not a condition precedent to an award of fees, Foster v....
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