Lacy v. UNITED STATES DEPT. OF THE NAVY
| Decision Date | 14 June 1984 |
| Docket Number | Civ. A. No. M-83-2727. |
| Citation | 593 F. Supp. 71 |
| Parties | Lynda LACY and Lynda Lacy, as Administratrix of the Estate of Michael Scott Lacy, deceased and Lynda Lacy, to the use of Kevin Scott Lacy and Patricia Stanley, Individually and as Administratrix of the Estate of Rowland de Graff Stanley, deceased and L. de Graff Stanley and Marianne Stanley v. UNITED STATES DEPARTMENT OF THE NAVY, an agency of the United States. |
| Court | U.S. District Court — District of Maryland |
Francis B. Burch, Jr. and Piper and Marbury, Baltimore, Md., and William D. Blakely and Lewis, Mitchell & Moore, Washington, D.C., for plaintiff Lacy.
Edwin T. Steffy, Jr., Baltimore, Md., and Donald L. Salem and Luce, Forward, Hamilton & Scripps, San Diego, Cal., for plaintiffs Stanley.
J. Frederick Motz, U.S. Atty. for the D. Md. and Elizabeth H. Trimble, Asst. U.S. Atty., Baltimore, Md. for defendant.
On July 19, 1983, the plaintiffs, Lynda Lacy, individually and as administratrix of the estate of Michael Lacy, and to the use of Kevin Scott Lacy; Patricia Stanley, individually and as administratrix of the estate of Rowland de Graff Stanley; L. de Graff Stanley; and Marianne Stanley, filed a complaint under the Freedom of Information Act, 5 U.S.C. § 552 (), seeking therein a preliminary and final injunction directing the defendant, the United States Department of the Navy, to make available to the plaintiffs all photographs related to the airplane accident on January 26, 1980, involving Major Rowland Stanley and Chief Petty Officer Michael Scott Lacy, and an award for attorneys' fees and costs and other relief. (Paper No. 1).
The plaintiffs filed a Motion for Summary Judgment in support of their position that all photographs regarding this incident held by the Navy should be produced and that the plaintiffs are entitled to attorneys' fees and costs. (Paper No. 7). On February 13, 1984, the defendant filed a Cross Motion for Summary Judgment indicating therein that the plaintiffs had been furnished with all photographs in the Navy's possession and opposing any award of fees or costs. (Paper No. 9). The plaintiffs filed a response to the defendant's cross motion. (Paper No. 10). After reviewing the memoranda in support of these motions, the court concludes that a hearing is unnecessary. Local Rule 6(E).
On January 26, 1980, a KA-3B aircraft, while on its final approach for landing at the Patuxent River Naval Air Station (NAS), Patuxent River, Maryland, crashed killing its pilot, Major Stanley, and navigator, Chief Petty Officer Lacy.
Following the crash, several investigators traveled to the site of the accident and gathered facts for their respective reports. Commander M. Concannon presided over the Mishap Investigation Board, the factual findings and recommendations of which were ultimately published in a Mishap Investigation Report (hereinafter referred to as the "MIR"). Commander Stuart Fitrell headed the investigation for the Judge Advocate General of the Navy, referred to as the JAGMAN investigation. The several hundred page JAGMAN report included findings of fact and opinions regarding the cause of the mishap and ways to prevent its reoccurrence. The JAGMAN report and the MIR included photographs. In addition to the above two investigations, a Naval Safety Center Investigation was conducted by Commander James N. Vreeland of the Naval Safety Center (NAS). Commander Vreeland took polaroid photographs and used other photographs during his investigation. Also present at the crash site were members of the Armed Forces Institute of Pathology (AFIP) whose primary purpose was to prepare pathological reports regarding the decedents. AFIP photographers obtained a large number of photographs of the crash site.
After the investigations at the crash site were completed, several parts of the airplane wreckage were transported to a hanger for additional review. After the MIR and the JAGMAN reports were finalized, most of the wreckage was destroyed through the Navy's salvage process. Plaintiffs' counsel were provided some of the wreckage.
Litigation was commenced the following year in the Maryland state courts by the representatives of the estates of the deceased crew members against McDonnell Douglas Corporation, the designer and manufacturer of the KA-3B wing flap system, assemblies and subassemblies which allegedly caused the unexpected roll and impact of the plane. To gather the facts surrounding the accident, counsel for the plaintiffs filed FOIA requests with the Navy.
On August 30, 1982, plaintiff Lacy by her counsel filed her first FOIA request with the Office of the Judge Advocate General requesting therein several items concerning the subject crash including all photographs and investigative reports in the possession of the United States, its agencies and/or employees. (Paper No. 9, Attachment G, Enclosure 1, ¶¶ 9 & 19). This FOIA request was forwarded to the Naval Safety Center in Norfolk, Va., Naval Air Systems Command, the FAA, the National Transportation & Safety Board in Washington, D.C., the Naval Air Test Center in Patuxent River, Md., and the Naval Air Rework Facility in Alameda, Ca. (Id. Enclosure 3). In response to this August 1982 request, the Navy produced the photographs in the JAGMAN report (5) and those from the Naval Air Rework Facility (NARF), Alameda (15). (Paper No. 7, Exh. 16 ¶ 4).
Responding to the FOIA request for the Navy Safety Center, Rear Admiral T.C. Steele identified the MIR as the only relevant document on file at the Naval Safety Center and refused disclosure of the document in whole or in part. (Paper No. 9, Attachment G, Enclosure 7). That determination was upheld on appeal on December 28, 1982 by the Judge Advocate General of the Navy. (Id. Enclosure 17). Similarly, a request for production of the index to the MIR was denied by Rear Admiral Steele. (Id. Enclosures 12 & 16).
Through independent investigation, counsel for plaintiff Lacy learned that hundreds of photographs of the scene of the crash had been taken by the Patuxent River NAS photographic laboratory. These photographs were reviewed by counsel but photographs of the left wing flap assembly and subassemblies were missing. (Paper No. 7, Attachment 16, ¶ 7). Counsel for the plaintiffs also discovered that Commander Vreeland, previously unidentified by the Navy, had conducted an investigation of the subject crash. On March 30, 1983, plaintiffs' counsel made another FOIA request specifically requesting the investigative report and photographs of the accident from Commander Vreeland. (Paper No. 9, Attachment H, Enclosure 8; Attachment G, Enclosure 26).
In response, H.A. Petrich responded, admitting the administrative oversight in not identifying the Vreeland Report in response to the earlier FOIA requests, but refusing disclosure of the Vreeland Report. (Paper No. 7, Attachments 10 & 11). Counsel appealed that decision (id. Attachment 12), and Rear Admiral Flynn refused the release of the Vreeland Report or the accompanying photographs (id. Attachment 13).
Counsel for the plaintiffs also sought at this time reconsideration of the Navy's decision not to produce the photographs attached to the MIR. (Id. Attachment 7). On July 18, 1983, counsel were informed that the position of the Navy regarding the confidentiality of the MIR, including any photographs, stated in the December 28, 1982 letter had not changed. . This suit followed immediately.
On December 13, 1983, the Navy produced for the plaintiffs the following photographs:
Although initially it seemed, through its submission of a group of photographs for in camera review, that the Government had not produced all requested photographs, it has become clear from the ensuing Cross Motion for Summary Judgment that, as the Government now states, the plaintiffs have received all the photographs in the possession of the Navy relating to this crash. The sole issue remaining is whether the plaintiffs are entitled to an award of attorneys' fees and costs.
Under the FOIA, the district court with jurisdiction to review the FOIA dispute "may assess against the United States reasonable attorney fees and other litigations costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). In determining whether plaintiffs are entitled to an award of attorneys' fees and litigation costs under subsection (a)(4)(E), this court must determine whether plaintiffs are eligible for an award, and if so, whether they are entitled to such an award. Church of Scientology v. Harris, 653 F.2d 584, 587 (D.C. Cir.1981), citing Crooker v. United States Department of the Treasury, 663 F.2d 140, 141-42 (D.C. Cir.1980); Fenster v. Brown, 617 F.2d 740 (D.C. Cir.1979); Cox v. United States Department of Justice, 601 F.2d 1 (D.C. Cir.1979).
An FOIA plaintiff is eligible for an award of attorneys' fees and costs if he has "substantially prevailed." Nix v. United States, 572 F.2d 998, 1006 (4th Cir.1978). In order to "substantially prevail" however, a complainant in an FOIA suit need not necessarily obtain a court order forcing the agency to disclose the documents sought. Nationwide Building Maintenance v. Sampson...
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