Falcone v. IRS, Civ. A. No. 78-72763.
| Decision Date | 07 April 1982 |
| Docket Number | Civ. A. No. 78-72763. |
| Citation | 535 F. Supp. 1313 |
| Parties | Joseph FALCONE, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Joseph Falcone, Bassey, Selesko, Couzens & Murphy, Southfield, Mich., for plaintiff.
Edward J. Snyder, Acting Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D. C., for defendant.
OPINION DENYING PLAINTIFF'S PETITION FOR ATTORNEY FEES
Plaintiff, Joseph Falcone ("Falcone"), is a tax attorney. In June of 1978 he requested of the Internal Revenue Service ("IRS"), defendant, copies of a General Counsel Memorandum ("GCM"), number 36846, a face sheet to the memorandum, and a one-page staff comment. The request was made under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and was denied under exemption (b)(5) covering deliberative documents. Falcone made the request on behalf of a client but the exigency of the client's problem required a decision before I could review the agency's denial. Nevertheless, Falcone in his own name, acting as a private attorney general, pursued the release in this court.
In the course of the litigation, the Internal Revenue Service released the cover sheet and on October 30, 1979, I granted Falcone's motion for summary judgment and ordered IRS to release the GCM. IRS appealed the decision but later withdrew the appeal following the decision of the United States Court of Appeals for the D.C. Circuit that GCMs were not exempt under the FOIA. See, Taxation With Representation Fund v. Internal Revenue Service, 646 F.2d 666 (D.C.Cir.1981).
Before me now is Falcone's motion for attorney fees under 5 U.S.C. § 552(a)(4)(E). That section provides:
The Court may assess 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.
Despite its rather liberal language, the section has consistently been read more narrowly. Like the more recent and more generally applicable Equal Access to Justice Act of 1980,1 Section 552(a)(4)(E) has been limited to cases in which the government's action was unreasonable. In addition, under the FOIA, the court must find that the public was benefited by the release and that the plaintiff's request was not motivated by a commercial interest.
The source of the extra-textual criteria is the Senate's version of the section and its accompanying comments. That version would have specifically required the court to:
... consider the benefit to the public, if any, deriving from the case, the commercial benefit to the complainant and the nature of his interest in the records sought, and whether the Government's withholding of the records sought had a reasonable basis in law.
120 Cong.Rec. 17045-47 (1974). Even though this language was deleted from the final version, almost every court that has interpreted the section has relied on the Senate's discussion. The U.S. Court of Appeals for the Sixth Circuit has not addressed the Act but the D.C. Circuit adopted the analysis in Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977); the Fourth Circuit in Nix v. United States, 572 F.2d 998 (4th Cir. 1978); the Fifth Circuit in Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978); and the Ninth Circuit in Polynesian Cultural Ctr. v. N.L.R.B., 600 F.2d 1327 (9th Cir. 1979). The D.C. Circuit has thoroughly explained the rationale in its opinion in Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704 (D.C.Cir.1977), and I will not repeat it here.
Applying the criteria in this case I find that an award of attorney fees would be inappropriate and Falcone's petition must be denied. I have no difficulty in finding that Falcone substantially prevailed in this suit. During the pendency of the suit, IRS released the cover sheet, undoubtedly only because of the suit, and I ordered IRS to release the GCM, the principal object of the request. The only document Falcone did not obtain was the one-page comment.
I also find that the release of the GCM did serve a substantial public benefit. As I stated in my opinion granting summary judgment:
Obviously, GCMs are widely recognized within the IRS as statements of agency...
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Ray v. US DEPT. OF JUSTICE, INS
...by the fact that the plaintiff in Falcone brought the action in his own name, acting as a private attorney general. Falcone v. I.R.S., 535 F.Supp. 1313, 1313 (E.D.Mich.1982), aff'd 714 F.2d 646 (6th Cir.1983), cert. denied, 466 U.S. 908, 104 S.Ct. 1689, 80 L.Ed.2d 162 (1984). Mr. Falcone, l......
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Falcone v. I.R.S.
...for fees on the basis that the IRS had not acted unreasonably in refusing to release the requested documents. Falcone v. Internal Revenue Service, 535 F.Supp. 1313 (E.D.Mich.1982). The plaintiff now appeals. Since this case involves a pro se FOIA plaintiff, our recent decision in Wolfel req......