Judicial Watch, Inc. v. U.S. Dept. of Commerce

• Decision Date: 01 December 2006
• Docket Number: No. 05-5366.,05-5366.
• Citation: 470 F.3d 363
• Parties: JUDICIAL WATCH, INC., Appellee v. UNITED STATES DEPARTMENT OF COMMERCE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

470 F.3d 363

JUDICIAL WATCH, INC., Appellee v. UNITED STATES DEPARTMENT OF COMMERCE, Appellant.

No. 05-5366.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 2006.

Decided December 1, 2006.

Appeal from the United States District Court for the District of Columbia (No. 95cv00133).

Marina Utgoff Braswell, Assistant U.S. Attorney, argued the cause for appellant. With her on the briefs were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Paul J. Orfanedes argued the cause for appellee. With him on the brief was James F. Peterson. Michael J. Hurley entered an appearance.

Before: RANDOLPH and TATEL, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge.

In 1995, Judicial Watch, Inc. filed an action in the District Court under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking information from the Department of Commerce ("DOC") regarding DOC's selection of participants for foreign trade missions. In May 1995, following a search in response to Judicial Watch's FOIA requests, DOC produced approximately 28,000 pages of nonexempt information and withheld about 1,000 documents as exempt. Disputes arose between the parties over the adequacy of DOC's search, and Judicial Watch charged that some DOC officials had destroyed or removed responsive documents. In December 1998, following discovery, the District Court granted partial summary judgment to Judicial Watch and ordered DOC to perform a new search. In issuing this judgment, the District Court concluded that DOC had wrongfully withheld, destroyed, and removed responsive documents, and ordered further discovery into the circumstances surrounding DOC's first search and the misconduct alleged by Judicial Watch. DOC then conducted an exhaustive new search, and Judicial Watch conducted extensive discovery.

In March 2000, following the second search, DOC moved for summary judgment. In November 2001, the District Court issued an order allowing Judicial Watch to expand its discovery into the circumstances of the second search. In September 2004, the District Court finally granted DOC's motion for summary judgment, upholding DOC's then-pending exemption claims. In November 2004, Judicial Watch moved for an award of attorney fees and costs under FOIA, 5 U.S.C. § 552(a)(4)(E), in the amount of almost $950,000. In opposing the fee request, DOC argued, inter alia, that there should be no award for fees generated after December 1998, because Judicial Watch had achieved no success on any of its claims following that date. In July 2005, the District Court awarded $897,331 to Judicial Watch in fees and costs, including about $488,000 for work performed after the court ordered a new search in December 1998.

On appeal, DOC advances three interrelated claims. Its principal claim is that "[a]n award of nearly half a million dollars for work that produced no tangible benefit to Judicial Watch amounts to a clear abuse of discretion on the part of the District Court." Appellant's Br. at 9. DOC also contends that Judicial Watch should not have been awarded fees and costs incurred after December 1998 for discovery efforts on "collateral issues." Id. at 17. Finally, DOC argues that the District Court "abused its discretion in awarding fees incurred in discovery disputes that Judicial Watch pursued with third parties," id. at 20, noting that it "had no control over these disputes, which eventually proved fruitless," id. at 21.

The District Court found a fee spanning the entire course of the lawsuit justified, because Judicial Watch substantially prevailed on its FOIA claim, and the post-1998 discovery was an inseparable part of that claim. We affirm the District Court's judgment in part. A portion of the post-1998 discovery was directly related to Judicial Watch's successful FOIA claim, so the District Court did not err in awarding fees for some of the work associated with the post-1998 discovery. We decline to entertain DOC's belated claim that fees should not have been awarded for some of the post-1998 discovery during which Judicial Watch allegedly engaged in a "fishing expedition." Id. at 10. This claim was not properly raised and preserved by DOC when it opposed Judicial Watch's fee application before the District Court; therefore, the claim is waived. DOC's last claim is meritorious, however. DOC correctly notes that a portion of the post-1998 work for which Judicial Watch seeks fees relates to protracted discovery disputes between Judicial Watch and third parties who were not within the realm of DOC's authority or control and with respect to issues not raised or pursued by DOC. As explained more fully below, the District Court abused it discretion in awarding fees generated by these so-called third-party "litigation disputes."

I. BACKGROUND

Judicial Watch is a non-profit corporation whose professed mission is to combat government corruption through legal and other corrective action. In the mid-1990s, Judicial Watch sought to determine whether DOC had sold seats on secretarial "trade missions" in exchange for contributions to the Democratic National Committee ("DNC") in violation of campaign finance law. Trade missions included trips to foreign countries led by the Secretary of Commerce during which representatives of U.S. companies met host nations' governments and business leaders and explored the potential for increasing trade. Judicial Watch filed multiple FOIA requests with DOC, seeking a wide array of material concerning several such trade missions. When DOC failed to respond, Judicial Watch filed suit in the District Court seeking relief under FOIA. The District Court's decisions in this case fully recount the decade-long legal battle between Judicial Watch and DOC, see, e.g., Judicial Watch, Inc. v. Dep't of Commerce (Partial Summary Judgment Decision), 34 F.Supp.2d 28, 29-41 (D.D.C.1998); Judicial Watch, Inc. v. Dep't of Commerce (Final Merits Decision), 337 F.Supp.2d 146, 156-57 (D.D.C.2004), so we will only summarize the events that are most relevant to this appeal.

Shortly after Judicial Watch filed suit, DOC produced approximately 28,000 documents. Following the District Court's resolution of numerous disputes over withheld documents, DOC moved for summary judgment in favor of Judicial Watch. The District Court denied DOC's motion, declared DOC's first search "inadequate, unreasonable, and unlawful," granted sua sponte partial summary judgment for Judicial Watch, and ordered DOC to conduct a second search under extremely "restrictive and rigorous" requirements. Partial Summary Judgment Decision, 34 F.Supp.2d at 42-46. In reaching this result, the District Court rested on its findings that DOC had "wrongfully withheld documents, destroyed documents, and removed or allowed the removal of others, all with the apparent intention of thwarting the FOIA and [court] orders." Judicial Watch, Inc. v. Dep't of Commerce (Interim Relief Decision), 34 F.Supp.2d 47, 48-49 (D.D.C.1998).

Given the unique circumstances of this case, the District Court reasoned that even a comprehensive, closely monitored second search by DOC would not afford adequate relief for Judicial Watch. On this point, the trial court noted:

There is substantial evidence that the DOC has destroyed documents and removed documents from its control in an effort to avoid releasing them to Judicial Watch. If the Court were to grant the DOC's motion and merely order a new search, these documents would not be found even by the most exhaustive of searches, and the DOC would have succeeded in circumventing the FOIA.

The DOC recognizes this situation and proposes in its motion a plan for retrieving jettisoned information. The DOC offers to mail letters to former employees of three offices within the DOC and request that the former employees determine whether they may have removed documents from the DOC when they left and, if so, that they search the documents for information responsive to Judicial Watch's FOIA requests. While this plan is a step in the right direction, the remedy for the government's misconduct in this case must have more "teeth" than the DOC proposal offers. The courts cannot be powerless to remedy FOIA violations where the agency simply discards potentially damaging responsive documents. There must be some mechanism by which the courts can keep the agencies from circumventing the FOIA by simply removing responsive documents from [their] control.

Partial Summary Judgment Decision, 34 F.Supp.2d at 42. The District Court thus concluded that "further discovery is required" and authorized Judicial Watch "to inquire into any discoverable information related to the destruction or removal of documents" during the first search, including "some inquiry into the creation and handling of documents." Id. at 46. The District Court appointed a Magistrate Judge to supervise discovery, but cautioned that "Judicial Watch should not be allowed to stray from inquiries that might be reasonably calculated to lead to evidence of unlawful destruction or removal of documents." Id. Based on a suspicion of additional wrongdoing, later determined to be unfounded, the District Court authorized Judicial Watch to inquire into the circumstances of the second search as well. Judicial Watch, Inc. v. Dep't of Commerce, 196 F.Supp.2d 1, 8 (D.D.C.2001).

Judicial Watch conducted extensive discovery (both before and after DOC completed its second search in March 2000), issuing numerous document requests and deposing nearly 20 individuals, including current and former employees of DOC and the DNC, as well as suspected trade mission participants. Deposition questioning covered DOC's alleged misconduct during the first search; inquired about possible locations of missing documents; and probed...