Cuneo v. Rumsfeld
| Decision Date | 11 May 1977 |
| Docket Number | No. 75-2219,75-2219 |
| Citation | 553 F.2d 1360,180 U.S.App.D.C. 184 |
| Parties | Gilbert A. CUNEO et al., Appellant, v. Donald H. RUMSFELD et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert L. Ackerly, Washington, D.C., for appellant.
Edwin E. Huddleson, III, Atty., Dept. of Justice, Washington, D.C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U.S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.
Before TAMM, MacKINNON and WILKEY, Circuit Judges.
Opinion for the Court filed by TAMM, Circuit Judge.
This appeal arises from the district court's denial of the request of the appellant, Gilbert A. Cuneo, for attorney fees under section 552(a)(4)(E) of the Freedom of Information Act 1 (FOIA). The principal issues for review are whether Cuneo, a member of the law firm which brought the action, may recover attorney fees under section 552(a)(4)(E) and whether that section applies to actions instituted before but terminated after its effective date.
After almost eight years of litigation, the appellees, the Secretary of Defense and the Director of the Defense Contract Audit Agency (DCAA), voluntarily released the information which Cuneo had requested while his FOIA suit was still pending in the district court. Upon appellees' motion that action was dismissed as moot. Cuneo then petitioned the district court for an award of reasonable attorney fees pursuant to section 552(a)(4)(E). Although the court found that Cuneo had substantially prevailed in this litigation within the meaning of section 552(a)(4)(E), it nonetheless held that he was not entitled to an award of attorney fees because section 552(a)(4)(E) could not be applied retroactively, and Cuneo and his counsel were partners in the practice of law and thus were appearing in propria persona. J.A. at 129.
In light of the legislative history and policy considerations of FOIA, we find that: 1) section 552(a)(4)(E) may be applied to actions filed before, but terminated after its effective date; and 2) an attorney appearing in propria persona may be entitled to an award of attorney fees. Therefore we reverse the decision of the district court and remand for a determination of the appropriateness of an award to appellant.
Appellant instituted this litigation on July 14, 1967, seeking production of the Defense Department's Defense Contract Audit Manual (Manual). The Manual prescribes the procedures and guidelines utilized by DCAA in auditing government contracts, including auditing and reporting standards and general audit requirements. The government resisted disclosure of the Manual and the case was argued before the United States District Court for the District of Columbia in January, 1972. After an in camera examination of the Manual, the court concluded that non-public portions were exempt from disclosure under sections 552(b)(2) and (5) of the FOIA which exempt internal personnel rules and practice, and intra- and inter-agency memoranda. Cuneo v. Laird, 338 F.Supp. 504 (D.D.C.1972), rev'd 157 U.S.App.D.C. 368, 484 F.2d 1086 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). On appeal this court reversed the district court and remanded the case with directions to determine whether portions of the Manual constituted "secret law." 157 U.S.App.D.C. 368, 484 F.2d 1086 (1973).
Pursuant to this court's recommendation the district court then ordered the appointment of a special master to review the entire case. J.A. at 107. The appellees' petition for a Writ of Prohibition and/or Mandamus to block that action was denied, Schlesinger v. United States District Court for the District of Columbia, No. 75-1013 (D.C.Cir. January 6, 1975), cert. denied, 421 U.S. 952, 95 S.Ct. 1688, 44 L.Ed.2d 107 (1975), and on January 7, 1975, the district court appointed a special master to review all portions of the Manual and make specific findings and conclusions on the claimed exemptions. J.A. at 108. Appellees' appeal from this order was dismissed, Cuneo v. Schlesinger, No. 75-1005 (D.C.Cir. January 10, 1975), but, on February 24, 1975, this court granted appellees' motions to stay the After the Manual's release, appellees filed a motion to dismiss due to mootness. The district court granted the motion but retained jurisdiction to consider the award of attorney fees. J.A. at 116. Appellant filed a petition for attorney fees and costs under section 552(a)(4)(E), J.A. at 116, but the district court denied his request. J.A. at 129. Appellant now seeks review of that decision.
district court's appointment of a special master to permit the government to seek review in the Supreme Court. Cuneo v. Schlesinger, No. 75-1013 (D.C.Cir. February 24, 1975). The Supreme Court denied certiorari, 421 U.S. 952, 95 S.Ct. 1688, 44 L.Ed.2d 107 (1975). Finally, with review by a special master pending and a lengthy record of tedious litigation covering a period of eight years, appellees released the Manual in its entirety on June 6, 1975.
Cuneo and his law firm specialize in the field of government contract law and in that connection represent four of the five largest defense contractors in the United States. J.A. at 8. Among these clients are companies which are awarded billions of dollars in defense contracts annually. Id. Appellant and his clients must, therefore, participate in extensive negotiations with government agents who specifically represent the DCAA. In these dealings appellees' agents rely on provisions of the Manual to determine allowability and allocability of costs. J.A. at 11. In his FOIA suit appellant asserted that the unavailability of the Manual seriously impaired his ability to effectively assist his clients during the contract negotiations. Apparently appellant felt disclosure of the Manual would benefit the commercial interest of his clients and in turn his law practice, and thus he instituted a suit to obtain the Manual.
While this action was pending Congress added section 552(a)(4)(E) to the FOIA to provide that attorney fees and other reasonable litigation costs could be awarded to complainants who substantially prevailed in FOIA actions. The statute became law on February 19, 1975.
It is firmly established in the United States that the "American rule" ordinarily precludes an award of attorney fees to the prevailing litigant. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Departure from this rule, in the form of both statutory and equitable exceptions, has been limited and discretely applied. Id. at 269, 95 S.Ct. 1612. Moreover, sovereign immunity prevents the award of costs or fees against the United States, absent specific statutory authorization. Id. at 267-68, 95 S.Ct. 1612. Although Congress has enacted a general waiver of sovereign immunity with respect to most litigation costs, 28 U.S.C. § 2412 (1970), 2 that provision does not allow recovery of attorney fees unless they are specifically provided for in another statute. National Association of Regional Medical Programs, Inc. v. Matthews, 179 U.S.App.D.C. 154, 551 F.2d 340 (1976).
Congress has specifically provided for the award of attorney fees in FOIA suits by enacting section 552(a)(4)(E). The legislative history of that section is extensive and illuminating. Congress realized that too often The Senate version of what was to become section 552(a)(4)(E) specified four criteria to be considered by the court in exercising its discretion to award attorney fees: (1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant's interest in the records sought; and (4) whether the government's withholding of the records had a reasonable basis in law. 5 The conference substitute followed the Senate version except that the criteria set forth above were eliminated. 6 The conference report explicitly states, however, that by eliminating these criteria the conferees did not intend to make the award of attorney fees automatic or to preclude the courts, in exercising their discretion in awarding such fees, from taking such criteria into consideration. 7 Instead, the conferees believed that because the existing body of law on the award of attorney fees recognized such factors, a statement of the criteria would be too delimiting and therefore was unnecessary. 8 See American Federation of Government Employees v. Rosen, 418 F.Supp. 205, 207-08 (N.D.Ill.1976).
the insurmountable barriers presented by court costs and attorney fees to the average person requesting information under the FOIA enabled the government to escape compliance with the law. 3 Recognizing that the FOIA had established a national policy of public disclosure of government information, Congress found it appropriate and desirable, in order to effectuate that policy, to provide for the assessment of attorney fees against the government where the complainant prevailed in FOIA litigation. 4
In resolving the issues presently before us we must take heed of congressional intent as expressed in the legislative history of the 1974 amendments to the FOIA. As a precondition to eligibility for an award of attorney fees under section 552(a)(4)(E), the FOIA complainant must first be deemed to have substantially prevailed in the action. 9 We believe that the district court was correct in its ruling that the complainant in this case did substantially prevail in the action.
The government contends that, since the Manual was released voluntarily and not as the result of a court order or judgment, the appellant did not substantially prevail and therefore is not eligible for an award of costs and attorney fees. 10 This contention has no merit. Recent court decisions and the legislative...
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