Weisberg v. U.S. Dept. of Justice

• Decision Date: 27 May 1988
• Docket Number: No. 87-5304,87-5304
• Citation: 848 F.2d 1265
• Parties: Harold WEISBERG, Appellant, v. U.S. DEPARTMENT OF JUSTICE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1265

848 F.2d 1265

270 U.S.App.D.C. 233

Harold WEISBERG, Appellant, v. U.S. DEPARTMENT OF JUSTICE.

No. 87-5304.

United States Court of Appeals District of Columbia Circuit.

Argued April 14, 1988.

Decided May 27, 1988.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 75-01996).

James H. Lesar, Washington, D.C., for appellant.

Scott R. McIntosh, Atty., Dept. of Justice, with whom James M. Spears, Acting Asst. Atty. Gen., Jay B. Stephens, U.S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge and ROBINSON and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This long-lived FOIA case has returned once more following a remand to the District Court. The case (and now the appeal) was brought by Harold Weisberg, an individual who has been engaged in litigation with the Department of Justice for thirteen years. Pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982), Mr. Weisberg has requested and received from the Federal Bureau of Investigation and the Department of Justice over 60,000 documents relating to the Government's investigation of the assassination of Dr. Martin Luther King, Jr.

This iteration of the lengthy litigation concerns what eligibility, if any, Mr. Weisberg has for attorney's fees incurred in the course of litigating the second of his two separate FOIA requests. The District Court ruled that Weisberg did not "substantially prevail" in the litigation with respect to his second request, and therefore failed to qualify for reimbursement under the Act's fee-shifting provision. The District Court also reduced the number of hours for which Weisberg's attorney could be compensated under his first FOIA request (with respect to which the parties now agree Weisberg substantially prevailed), and refused to enhance the fee award. Weisberg appeals from these adverse determinations.

I

Having elsewhere related the complicated background of this litigation, we will refrain from doing so here. See Weisberg v. Department of Justice, 745 F.2d 1476 (D.C.Cir.1984) (Weisberg II ). ¹ We will, however, canvass the essentials.

On April 15, 1975, Weisberg submitted a limited FOIA request for FBI documents connected to its investigation of Dr. King's murder. Unsatisfied with the Bureau's progress in providing the requested information, Weisberg filed suit on November 23, 1975 seeking compliance with his request. One month later, Weisberg filed an additional--and very broad--administrative request for further information bearing on Dr. King's murder. The second request sought virtually all information in the FBI's files pertaining to the investigation. The next day, without waiting the statutory (ten-day) period, see 5 U.S.C. Sec. 552(a)(6)(A)(i), Weisberg amended his complaint to include (anticipated) non-disclosure under his second administrative request. The administrative processing of Weisberg's second request was thus concurrent with litigation over that request.

Within approximately two years, the Department provided Weisberg over 60,000 documents pursuant to both requests. Weisberg was nonetheless dissatisfied, contending that the Department's search of its files was inadequate in several respects. The District Court granted summary judgment in favor of the Department, holding that DOJ had adequately complied with Weisberg's search request, and that its claimed exemptions for excising portions of certain documents were in order.

At the same time, however, the District Court granted Weisberg's motion for summary judgment as to whether he had substantially prevailed in the litigation. Accordingly, the court awarded Weisberg some $100,000 in fees and costs. The trial court viewed the litigation over Weisberg's first and second requests jointly, and held that Weisberg had substantially prevailed by virtue of the enormous volume of documents he had secured.

On appeal, we affirmed Judge Green's judgment with respect to the adequacy of the Department's search and its claimed exemptions. ² Weisberg II, 745 F.2d 1476 (D.C.Cir.1984). On the subject of attorney's fees, however, we vacated and remanded to the District Court. We instructed the court to reevaluate whether Weisberg had substantially prevailed, noting that his two FOIA requests were to be viewed separately. If the trial court determined that compensation was warranted on one or both requests, we instructed the court to calculate fees so as to give credit only for hours spent litigating successfully; if the court determined that Weisberg substantially prevailed on only one of his two requests, then only those hours devoted to litigating the successful request were to be compensable.

On remand, the District Court concluded that Weisberg substantially prevailed on his first request, but not on his second. See Weisberg v. U.S. Department of Justice, Civ. No. 75-1996 (D.D.C. May 23, 1987), reprinted in Joint Appendix (J.A.) at 239 (hereinafter cited as "Opinion"). Determining that Weisberg otherwise met the standards for qualifying for a fees award, the court awarded compensation for his first request in the amount of $23,000. ³ With respect to the second request, the court viewed Weisberg's success in obtaining documents as attributable in the main to the Government's administrative processing of the request. On the few matters as to which Weisberg succeeded in getting court orders, the court discounted the documents received as duplicative of previously released documents, or as too insignificant to justify a holding that Weisberg substantially prevailed on his overall second request. See Weisberg II, 745 F.2d at 1497 (instructing the District Court to evaluate whether "appellant substantially prevailed as to his overall request").

The court therefore denied fees for time spent litigating the second request. The court also reduced the hours for which Weisberg's counsel was to be compensated for the first request, as time either spent on the second request or spent unproductively. In addition, the court declined to increase counsel's hourly rate to compensate him either for delay in receiving his fees or for the risk of contingency in this type of case. This appeal followed.

II

Like so many modern statutes, FOIA contains a fee-shifting mechanism. To restate briefly what is now highly familiar, FOIA authorizes a district court to "assess against the United States reasonable attorney fees ... in any case ... in which the complainant has substantially prevailed." 5 U.S.C. Sec. 552(a)(4)(E). To be eligible for a fee award, an applicant must demonstrate (1) that he or she "substantially prevailed" in the litigation, and (2) that he or she is entitled to fees under a separate inquiry not relevant to this case. See Weisberg II, 745 F.2d at 1495; Church of Scientology of California v. Harris, 653 F.2d 584 (D.C.Cir.1981). If an applicant is entitled to fees, the court multiplies the number of hours expended on the successful litigation and the attorney's hourly rate to determine the amount of the award.

The determination of whether a party substantially prevailed (in the absence of a final judgment in his or her favor) is "largely a question of causation." Weisberg II, 745 F.2d at 1496. A party seeking to establish his or her eligibility for fees "must show that prosecution of the action could reasonably be regarded as necessary to obtain the information ... and that a causal nexus exists between that action and the agency's surrender of that information...." Cox v. Department of Justice, 601 F.2d 1, 6 (D.C.Cir.1979). It is clear, however, that "the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation." Weisberg II, 745 F.2d at 1496 (citing Crooker v. Department of the Treasury, 663 F.2d 140, 141 (D.C.Cir.1980).

The standard of review on appeal is equally well-established. The question of whether a litigant substantially prevailed is one of fact. A district court's resolution of that question will therefore be reversed only if it is clearly erroneous. See FED.R.CIV.PRO. 52(a); Cox v. Department of Justice, 601 F.2d at 6; Crooker v. Department of the Treasury, 663 F.2d at 142.

III

Weisberg argues that his success in several aspects of the litigation over his second request demonstrates that he substantially prevailed. Aside from a broad argument that litigation was necessary to secure any response at all (an argument which we will treat later), Weisberg concentrates on several discrete series of events in seeking to establish his eligibility for fees.

A

Complete Copying Fee Waiver. After initially granting a 40 percent reduction in the fees customarily charged for photocopying requested documents, the Department switched course and granted Weisberg a complete waiver for the more than 60,000 documents that were eventually produced pursuant to the two requests. The Department declined initially to waive copying fees, and Weisberg repaired to court to free himself from the considerable financial burdens of obtaining the voluminous materials he had requested. The Department opposed Weisberg's motion, arguing that he was not entitled to a waiver. While this controversy was pending, Weisberg won a similar motion in separate FOIA litigation (over his request for documents concerning the assassination of President Kennedy.) See Weisberg v. Bell, No. 77-2155 (D.D.C. Jan. 16, 1978) (Gesell, J.). By March 1978, Weisberg was pressing the court in the present case for an order similar to the one he received from Judge Gesell in Weisberg v. Bell. In the course of that effort, Judge Green issued an order for the Department to explain within eight days its refusal to grant the waiver. See Opinion and Order (March 3, 1978), reprinted in Addendum 1 to Reply Brief for Appellant.

The Department subsequently granted Weisberg...