Allen v. FBI

• Decision Date: 22 December 1989
• Docket Number: Civ. A. No. 81-1206.
• Citation: 716 F. Supp. 667
• Parties: Mark A. ALLEN, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

716 F. Supp. 667

Mark A. ALLEN, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Civ. A. No. 81-1206.

United States District Court, District of Columbia.

December 22, 1989.

James H. Lesar, Dept. of Justice, Civ. Div., Washington, D.C., for plaintiff.

Thomas A. Bovard, Vincent M. Garvey and Stephen E. Hart, Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM

JUNE L. GREEN, District Judge.

This matter is before the Court on plaintiff Mark Allen's application for an interim award of attorney's fees and costs. Under the Freedom of Information Act ("FOIA"), a court may award reasonable attorney fees to a complainant who has "substantially prevailed." 5 U.S.C. § 552(a)(4)(E) (1982). For the reasons stated below, the Court denies plaintiff's application without prejudice.

FACTS

The plaintiff seeks access under FOIA to records of any communications between the United States House of Representatives' Select Committee on Assassinations and the Federal Bureau of Investigation relating to the Committee's investigation into the assassination of President John F. Kennedy. Plaintiff's first request was made on December 12, 1980, and his second request followed on April 6, 1981. The FBI refused to release any of the material that was "generated in response to requests from" the Committee, claiming that all of the records were congressional documents. Plaintiff also sought a waiver of search and copying fees for both requests. After appealing both denials, plaintiff was informed that the decision on both appeals would be delayed because of a substantial backlog of pending appeals and a shortage of attorneys.

Plaintiff filed this action on May 22, 1981. It was not until December 8, 1981 that defendants admitted that Congress did not maintain control over all of the requested records. On December 31, 1981, defendants denied plaintiff's fee waiver request.

Plaintiff moved for a waiver of all search fees and copying costs. This Court held that the FBI's denial of a fee waiver was "arbitrary and capricious" and ordered all fees to be waived. Allen v. FBI, 551 F.Supp. 694, 697 (D.D.C.1982).

Subsequently, the Clerk of the House of Representatives intervened and both the Clerk and the Executive Branch defendants filed motions for summary judgment. The Clerk argued that the more than 300,000 pages collected by the Committee and held by the FBI were congressional documents under the test established in Goland v. CIA, 607 F.2d 339 (D.C.Cir.1978), modified on other grounds, 607 F.2d 367 (D.C.Cir. 1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). In addition, the Clerk claimed that the speech or debate clause of article I, section 6, clause 1 of the Constitution barred their disclosure. On the other hand, the Executive Branch defendants argued that all of the records were protected from disclosure by exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5).

This Court rejected the Clerk's argument that the entire body of more than 300,000 pages of documents were congressional records not subject to the FOIA. Allen v. FBI, No. 81-1206, mem. op. at 5 (D.D.C. Nov. 24, 1982). As for the speech or debate clause argument, the Court found that "communications sent from the Committee to the FBI in pursuit of a lawful congressional investigation are an integral part of the `deliberative and communicative process' of Congress." Id. at 6. As such, the speech or debate clause barred the disclosure of the limited number of records originating with the Committee. The Court also held the Executive Branch defendants' exemption 5 claim to be premature and denied their summary judgment motion without prejudice.

After these rulings, plaintiff obtained an administrative review of certain exemption claims which resulted in the release of materials that had been withheld initially. Plaintiff also filed a motion for a Vaughn¹ index and then negotiated with defendants for a Vaughn sampling index which has been completed and submitted to the plaintiff. Defendants state that approximately 77,000 pages of material remain unprocessed and pursuant to a verbal agreement between plaintiff's counsel and defendants, defendants are continuing to process material at the rate of 5,000 pages a month.

All parties agree that this litigation will continue for several more years. Plaintiff now requests an interim award of attorney's fees and costs in the amount of $24,693.52. He also seeks a 20 percent increase in the lodestar due to the contingency nature of the fee arrangement and a 10 percent enhancement as a result of novel legal issues, which brings the total request for fees to $32,018.17.

DISCUSSION

I. The Availability of Interim Fees Under the FOIA

The threshold issue is whether section 552(a)(4)(E) authorizes a court to order the payment of "interim" attorney fees. Section 552(a)(4)(E) provides:

The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

The government argues that the waiver of sovereign immunity found in the FOIA attorney fees' provision does not extend to interim awards. Furthermore, even if it did, an order to pay interim fees could not be fulfilled without violating the "Judgment Fund" statutes of 31 U.S.C. § 1304 and 28 U.S.C. § 2414.

These arguments were addressed recently by the Ninth Circuit. In Rosenfeld v. United States, 859 F.2d 717 (9th Cir.1988), the Justice Department appealed an interim award of attorney fees under the FOIA, raising these same arguments. Although the Ninth Circuit dismissed the appeal since it found that interim fee awards are not appealable orders, the court held that the principles of sovereign immunity and the Judgment Fund statutes did not prohibit interim fee awards in FOIA cases. Id. at 727.

Other than the Ninth Circuit, only three district courts have concluded, after reviewing the legislative history of the FOIA, that section 552(a)(4)(E) authorizes interim fee awards. Rosenfeld v. United States Dep't of Justice, Nos. 85-2247 & 85-1709 (N.D.Cal. Oct. 1, 1987); Powell v. United States Dep't of Justice, 569 F.Supp. 1192 (N.D.Cal.1983); Biberman v. FBI, 496 F.Supp. 263 (S.D.N.Y.1980).

The Biberman court appears to be the first to discuss the court's authority to grant such awards. After reviewing the legislative history of the FOIA, the court discovered that the reports did not offer much guidance as to whether Congress intended to grant such authority since they failed to mention interim awards, either favorably or unfavorably. Biberman, 496 F.Supp. at 264. The court concluded, however, that "Congress' statements of the policy intended to be advanced by the attorneys fee provision support the conclusion that an interim award may be made in appropriate circumstances." Id.

The court found Congress' statements of policy persuasive:

Too often the barriers presented by court costs and attorneys' fees are insumountable sic for the average person requesting information, allowing the government to escape compliance with the law.

S.Rep. No. 854, 93d Cong., 2d Sess. 17 (1974). Since Congress established a national policy of disclosure in the FOIA, the committee found it "appropriate and desirable, in order to effectuate that policy, to provide for the assessment of attorneys' fees.... Id. at 18. The committee quoted an observation by Senator Thurmond:

"We must insure that the average citizen can take advantage of the law to the same extent as the giant corporations with large legal staffs. Often the average citizen has foregone the legal remedies supplied by the Act because he has had neither the financial nor legal resources to pursue litigation when his Administrative remedies have been exhausted."

Id. (quoting Hearings before the Subcommittee on Intergovernmental Relations of the Committee on Government Operations and the Subcommittees on Separation of Powers and Administrative Practice and Procedure of the Committee on the Judiciary, vol. I at 175 (April 10, 1973)) (statement of Senator Thurmond).

The Biberman court recognized that the protracted nature of some FOIA cases could force plaintiffs to drop meritorious claims absent an interim fee award.

If the court lacks authority to grant such an interim award, the congressional purpose in adopting § 552(a)(4)(E) would, pro tanto, be frustrated: the litigation would wither and die; the records sought would remain undisclosed. The availability of a final award in such circumstances would be fools gold only.

Biberman, 496 F.Supp. at 265. The court concluded that section 552(a)(4)(E) authorizes interim fees in cases in which it is "necessary to the continuance of litigation which has proven to be meritorious at the time of the application." Id. The court did not address the Judgment Fund statutes.

In Powell, the court recognized the Biberman opinion and expanded by comparing the FOIA fee provisions with other fee provisions that have been found to authorize interim fees. Among these was the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988.² In Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980), the Supreme Court found that section 1988 authorized interim fees "only when a party has prevailed on the merits of at least some of his claims." The Court did find help in reviewing the legislative history since the House Committee Report quoted the standard suggested by Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), finding that "`the entry of any order that determines substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees....'" H.R.Rep. No. 1558, 94th Cong., 2d Sess. 8 (1976) (quoting Bradley, 416 U.S. at 723 n. 28, 94 S.Ct. at 2022 n. 28). The Hanrahan Court also found that "the Senate Committee Report...