Clemente v. Fed. Bureau of Investigation, Civil Action No. 08–1252 (BJR)

• Decision Date: 16 October 2015
• Docket Number: Civil Action No. 08–1252 (BJR)
• Citation: 166 F.Supp.3d 11
• Parties: Angela Clemente, Plaintiff, v. Federal Bureau of Investigation, et al., Defendants.
• Court: U.S. District Court — District of Columbia

166 F.Supp.3d 11

Angela Clemente, Plaintiff,

v.Federal Bureau of Investigation, et al., Defendants.

Civil Action No. 08–1252 (BJR)

United States District Court, District of Columbia.

Filed October 14, 2015

Signed October 16, 2015

Michael W. Seckar, Michael W. Seckar, P.C., Pueblo, CO, for Plaintiff.

Kevin Thomas Traskos, U.S. Attorney's Office, Thomas Henry Kraus, Social Security Administration, Denver, CO, for Defendants.

ORDER DENYING PLAINTIFF'S RENEWED MOTION FOR AN INTERIM AWARD OF ATTORNEY FEES AND COSTS

Barbara Jacobs Rothstein, United States District Court Judge

I. INTRODUCTION

Plaintiff, Angela Clemente, filed this suit under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552

, against the Federal Bureau of Investigation (“FBI”), a component of the U.S. Department of Justice, and other unnamed agencies (collectively “Defendants”). Before the Court is Plaintiff's Renewed Motion for an Interim Award of Attorney Fees and Costs. Dkt. No. 126. Defendants oppose the motion. Dkt. No. 129. For the reasons stated below, the Court denies Plaintiff's motion.

II. BACKGROUND

Plaintiff filed this FOIA action against Defendants on July 21, 2008, seeking to obtain an unredacted copy of the FBI's file on the late Gregory Scarpa, Sr., a high-ranking Mafia member who served as an FBI informant. See Clemente v. F.B.I., 741 F.Supp.2d 64, 71 (D.D.C.2010)

. The parties have been through two rounds of cross motions for summary judgment. See Dkt. Nos. 11, 25–40, 51–52, and 78. After the first round of motions, U.S. District Court Judge Paul L. Freidman, to whom this case was originally assigned, found that the FBI had conducted an adequate search for documents responsive to Plaintiff's FOIA request, but directed Defendants to supplement their Vaughn index and instructed the parties to agree on a representative sample of the documents that were responsive to Plaintiff's FOIA request.¹

Id. at 89. In response to Judge Freidman's order, the parties agreed that Defendants would produce a new Vaughn Index of a representative sample of approximately 192 pages. Dkt. No. 81 at 8.

The FBI reprocessed the sample pages and released further information. Id. The parties then renewed their cross motions for summary judgment, and on April 23, 2012, this Court granted the Defendants' motion as to the adequacy of the FBI's search for documents related to Plaintiff's FOIA request, but ordered that the non-sample documents be reprocessed in light of the fact that the FBI released additional information when it reprocessed the sample documents. Dkt. No. 81 at 18. The Court also denied Plaintiff's cross motion without prejudice. Id. at 19.

In response to the April 23, 2012 order, Defendants once again reprocessed the entire initial release of documents (i.e., all of the FBI documents that were responsive to Plaintiff's FOIA request). Dkt. No. 84 at 1. In a status report dated February 2, 2013, Defendants represented to the Court that it reprocessed 1,153 documents and ultimately released all 1,153 documents. Id. Per the Court's instruction, the parties filed another joint status report on April 25, 2013 and once again the FBI represented that it had released all of the 1,153 documents. Dkt. No. 85.

Thereafter, Plaintiff filed her first motion for an interim award of attorney's fees and costs. Defendants opposed the motion, arguing that Plaintiff had not established the need for an award of fees prior to the conclusion of the litigation. This Court agreed and denied the motion without prejudice. Dkt. No. 98. The Court did state, however, that it would entertain a renewed motion in the event that this case continued in a protracted manner. Id. at 6.

On November 14, 2013, Defendants filed a third motion for summary judgment, arguing that the FBI had satisfied all of its obligations under FOIA with respect to this matter. This Court granted in part and denied in part the motion. Dkt. No. 121. Specifically, this Court ordered Defendants to supplement the Vaughn Index to address issues raised by Plaintiff regarding the life status of certain individuals.

In addition, the Court instructed Defendants to address arguments raised by Plaintiff with respect to two identified documents.² Lastly, the Court ordered Defendants to release redacted information contained in a document identified by Plaintiff.³

On September 17, 2014, Defendants supplemented the Vaughn Index in accordance with the Court's instructions. Thereafter, having not heard anything from the parties for nearly four months, this Court instructed the parties to file a joint status report notifying it of the status of the case. On January 30, 2015, the parties obliged and notified the Court that Plaintiff's counsel had been diagnosed with “a life-threatening blood clot

in his right leg.” Dkt. No. 123 at 1. However, the parties stated, Plaintiff “will now file a separate report detailing the status of the case and addressing to the extent presently possible her objections to the FBI's [current Vaughn Index].” Id. at 2. Defendants promised to “review [Plaintiff's] report and determine what issues can be worked out ... and which cannot.” Id. It is unclear from the case docket and/or the parties' representation whether such a report was ever exchanged between the parties. However, nearly six months later, Plaintiff filed the present renewed motion for an interim award of fees. Dkt. No. 126.

III. DISCUSSION

A court, in its discretion, may grant an interim award of attorney fees to a requesting party who substantially prevails in a FOIA request. See 5 U.S.C. § 552(a)(4)(E)

; Allen v. FBI, 716 F.Supp. 667, 671 (D.C.Cir.1989) (noting that if the “government could circumvent the requirements of the FOIA and avoid full disclosure by a war of attrition ... a final award of attorney fees would be like the end of a rainbow, unattainable”). However, the D.C. Circuit has expressly cautioned that courts “should be dissuaded” from granting such requests, and only grant them “in the unusual instances of protracted litigation and financial hardship.” Id. (noting that an interim award of fees should be granted only in limited circumstances). The Court further stated that courts should consider four factors in determining whether to grant such a request:

First, the court should consider the degree of hardship which delaying a fee award until the litigation is finally concluded would work on plaintiff and his or her counsel.... Second, the court should consider whether there is unreasonable delay on the government's part.... Third, the court should consider the length of time the case has been pending prior to the motion, and fourth, the period of time likely to be required before the litigation is concluded.

Id. at 672

(quoting Powell v. United States Dep't of Justice, 569 F.Supp. 1192, 1200 (N.D.Cal.1983) ).

This is Plaintiff's second motion for an interim award of attorney's fees. As noted above, Plaintiff first moved for an interim award of fees on May 23, 2013. Dkt. No. 88. At that time, Plaintiff argued that she had substantially prevailed on her FOIA claims and was therefore eligible to recover attorney's fees. She claimed that an interim award was appropriate because she and her attorney would suffer significant financial hardship if the award was delayed until the end of the case. Id. at 22. Specifically, she alleged that she has terminal cancer

and her attorney, who took this case on a contingency fee basis, “has only a small Social Security check as regular income” and suffers from several “serious chronic diseases.” Id. Further, her attorney claimed that he would be “unable and unwilling to continue with this litigation” without an interim award of fees. Dkt. No. 95 at 7.

This Court denied Plaintiff's request, finding, among other reasons, that Plaintiff had not established financial hardship beyond that which all attorneys who accept contingency fee cases face. In addition, the Court noted that this case had reached its final stages of litigation. In opposing the motion for interim fees, Defendants had represented to the Court that they would be renewing their summary judgment motion, a motion that had already been fully briefed. Therefore, this Court was not persuaded that defending against Defendants' renewed motion would cause Plaintiff to incur further expenses of a significant nature. However, the Court noted, if after resolving the Defendants' summary judgment motion, it appeared that this matter would continue in a protracted manner, the Court would revisit the interim fee issue.

Now, two and a half years later, Plaintiff has renewed her motion for an interim award of fees. Plaintiff once again argues that she has terminal cancer

and her attorney continues to suffer from several serious medical conditions. In addition, Plaintiff's attorney claims that he continues to suffer financial hardship. He alleges that “in the past two years, [he] has suffered a net income loss of several tens of thousands of dollars each year.” Dkt. No. 126 at 27. He claims that “[s]ome of this loss is directly attributable to this case.” Id. He further argues that “[i]n this case, [he] has very substantial overhead costs in the form of rent, bar dues, computer, internet and printer services and supplies, etc.” Id. Plaintiff also points out that this case is now seven years old, and as such, meets the definition of “protracted litigation.” Plaintiff attributes the length of this case to “unreasonable delay” by Defendants. Finally, she argues that this case is not yet near completion, claiming that Defendants' most recent Vaughn Index is defective in a number of ways.

Once again, this Court finds that Plaintiff is not entitled to an interim award of fees. First, Plaintiff has failed to establish financial hardship. While Plaintiff's counsel alleges that he has lost “tens of thousands of dollars” in the last two years, he fails to establish that this loss is significantly tied to the instant case. Indeed, counsel only states that “[s]ome...