Cotton v. Heyman

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: Before BUCKLEY, WILLIAMS, and SENTELLE; SENTELLE
• Citation: Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995)
• Decision Date: 11 July 1995
• Docket Number: No. 94-5014,94-5014
• Parties: Catherine COTTON, Appellee, v. I. Michael HEYMAN, Secretary, The Smithsonian Institution, Appellant.

Page 1115

63 F.3d 1115

314 U.S.App.D.C. 161

Catherine COTTON, Appellee, v. I. Michael HEYMAN, Secretary, The Smithsonian Institution, Appellant.

No. 94-5014.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 14, 1995.

Decided July 11, 1995.

Appeal from the United States District Court for the District of Columbia 91cv02827.

Robert L. Shapiro, Asst. U.S. Atty., Washington, DC, argued the cause for appellant. With him on the briefs were Eric H. Holder, Jr., U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

David C. Vladeck, Washington, DC, argued the cause for appellee. With him on the brief were Brian Wolfman and Alan B. Morrison, Washington, DC.

Before BUCKLEY, WILLIAMS, and SENTELLE, Circuit Judges.

SENTELLE, Circuit Judge:

The Smithsonian Institution (the "Smithsonian") appeals an award of attorneys' fees under the Freedom of Information Act ("FOIA"). 5 U.S.C. Sec. 552(a)(4)(E) (1994). Specifically, the Institution argues that the district court erred in holding the Smithsonian an agency under FOIA. See id. at Sec. 552(f). The appellant also contends that, assuming arguendo that it is such an agency, the district court misapplied the public-benefit prong of the four-part test to determine whether Catherine Cotton, the eligible FOIA plaintiff here, is entitled to attorneys' fees. See Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1093 (D.C.Cir.1992). For purposes of this appeal, we accept the district court's holding that the Smithsonian is indeed an agency under FOIA. However, we agree with the Smithsonian that the district court erred in its application of the public-benefit prong. Because the district court's award of fees was based entirely on this misapplication, we reverse the award.

I. BACKGROUND

On October 18, 1991, plaintiff filed a FOIA request, see 5 U.S.C. Sec. 552 (1994), with the Office of General Counsel of the Smithsonian for documents contained in the Office of the Inspector General regarding the Smithsonian museum shops. Plaintiff had worked as a reorder buyer for these shops prior to her termination, and she believed these documents would facilitate her preparation of an employment discrimination suit. The Smithsonian denied plaintiff's FOIA request, asserting it was not an agency as contemplated by FOIA. Plaintiff then filed this suit to obtain the documents she requested. The Smithsonian moved to dismiss, again maintaining it was not covered by FOIA.

On March 18, 1992, the district court ruled that the Smithsonian was in fact an agency subject to FOIA. The court then directed the Smithsonian to process plaintiff's request and prepare a Vaughn index for those records it intended to withhold. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The Smithsonian complied with the court's instruction. In addition, the Smithsonian voluntarily released to plaintiff two of the four relevant documents it had located.

The parties then filed cross motions for summary judgment regarding the Smithsonian's decision to withhold the two remaining documents pursuant to FOIA privacy exemptions 6 and 7(C), 5 U.S.C. Sec. 552(b)(6) and (b)(7)(C). The Smithsonian also asked the district court to reconsider its holding that the Smithsonian was an agency subject to FOIA. On June 26, 1992, the court upheld the Smithsonian's withholding of the documents pursuant to FOIA exemption 6, but not exemption 7(C). The court, however, denied the Smithsonian's motion for reconsideration. The court also issued an order and judgment dismissing the case.

On July 27, 1992, the Smithsonian filed a notice of appeal from the district court's order and judgment entered on June 26, 1992. 798 F.Supp. 22. However, the Smithsonian moved to dismiss this appeal on August 14, 1992, and the motion was granted.

Plaintiff subsequently sought attorneys' fees. The Smithsonian opposed the request, arguing that under the four-part test for determining whether a prevailing FOIA plaintiff ought to receive such fees, plaintiff was not entitled to an award. See Chesapeake Bay Found., Inc. v. U.S. Dep't of Agric., 11 F.3d 211, 216 (D.C.Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 315, 130 L.Ed.2d 277 (1994). On December 14, 1993, the district court, applying the four-part test, granted the fee applications. The Smithsonian appealed this fee award, including the determination that it is an agency under FOIA.

II. DISCUSSION

FOIA allows a district court to "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." 5 U.S.C. Sec. 552(a)(4)(E). In determining whether an eligible FOIA litigant is entitled to fees, we have held that at least four factors must be considered: 1) the public benefit derived from the case; 2) the commercial benefit to the plaintiff; 3) the nature of the plaintiff's interest in the records; and 4) whether the government has a reasonable basis for withholding the requested information. Chesapeake Bay Found., 11 F.3d at 216. In addition, "although the test of entitlements involves a balance of several factors, there can be no doubt that a party is not entitled to fees if the government's legal basis for withholding requested records is correct." Id. (citations omitted); see also Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 712 n. 34 (D.C.Cir.1977) ("Certainly where the government can show that information disclosed after initial resistance was nonetheless exempt from the FOIA a plaintiff should not be awarded attorney fees under section 552(a)(4)(E)").

Relying on this quoted language, the Smithsonian believes we must undertake a de novo review of the district court's determination that the Smithsonian is an agency under FOIA. Accordingly, if we conclude the lower court erred, and thus the Smithsonian's legal position is correct as to its right to withhold the documents, we must reverse the award of attorneys' fees. Plaintiff responds that we cannot reexamine this particular issue because it is moot. Specifically, she argues the Smithsonian released all non-exempt documents responsive to her request after the district court ruled the Smithsonian was subject to FOIA. The Smithsonian allegedly did so only because of the district court's ruling that it was subject to FOIA. Consequently, no justiciable controversy remains regarding this point. Plaintiff maintains that the Smithsonian, to preserve its right to appeal, should have sought a stay in the district court to permit it to withhold the disputed records until the conclusion of appellate review.

Alternatively, plaintiff argues the appeal of this issue is untimely because it was not filed within 60 days of the district court's final order and judgment on June 26, 1992, disposing of the merits. See FED.R.APP.P. 4(a). Rather, the notice of appeal was filed on January 13, 1994, subsequent to the attorneys' fees proceeding. In support of this latter argument, plaintiff relies on the Supreme Court case, Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988), holding that once a final decision on the merits is entered, for purposes of 28 U.S.C. Sec. 1291, the losing party has no option to postpone its appeal, regardless of whether a pending request for attorneys' fees exists. Id.

While we believe plaintiff misunderstands the subtle issues involved here, we agree that we should not conduct a de novo review of the Smithsonian's agency status. Theories of mootness and untimeliness do not, however, guide our decision. Rather, we find the issue precluded by the doctrine of direct estoppel. ¹ Plaintiff's argument that the Smithsonian's release of the two non-exempt documents moots the issue has potential force only insofar as the original proceeding on the merits was concerned. If the Smithsonian desired to appeal the district court's determination of its agency status, it could have asked for a stay to permit it to withhold the non-exempt documents until the conclusion of appellate review. See Constangy, Brooks & Smith v. NLRB, 851 F.2d 839, 841-42 (6th Cir.1988) (because all documents subject of the appeal have been released, appellate court is unable to grant relief).

Plaintiff's mootness argument has no applicability to this proceeding, however, because we are asked to address the correctness of the Smithsonian's position regarding its agency status in the context of an attorneys' fees examination, rather than in the original context of document disclosure. If we were to examine the correctness of the Smithsonian's position, we could still potentially grant relief in the form of denying attorneys' fees. Consequently, for purposes of plaintiff's mootness argument, it is immaterial that the Smithsonian released its non-exempt documents during the merits phase.

Similarly, plaintiff's timeliness argument has no bearing on the facts of this case. The Smithsonian was incapable of appealing its status under FOIA at the close of the merits proceeding because it had won a favorable judgment regarding the two remaining documents. See Showtime Networks, Inc. v. FCC, 932 F.2d 1, 4 (D.C.Cir.1991) ("It is the general rule that a party may not appeal from a disposition in its favor"). The district court upheld the Smithsonian's position that these two documents fell within a FOIA exemption. Because the Smithsonian had already mooted the court's adverse agency ruling, see supra, there was nothing left to appeal. Plaintiff's reliance on Budinich in support of her timeliness argument is inapplicable. In that case, the appellant brought an action to recover employment compensation allegedly due. While a jury awarded him compensation, the appellant was dissatisfied with the size of the verdict. Budinich, 486 U.S. at 197, 108 S.Ct. at 1719. However, ...