Rosenfeld v. U.S.

• Decision Date: 22 December 1988
• Docket Number: No. 87-2975,87-2975
• Citation: 859 F.2d 717
• Parties: Seth ROSENFELD, Plaintiff-Appellee, v. UNITED STATES of America; The Federal Bureau of Investigation, Defendants- Appellants. UNITED STATES DEPARTMENT OF JUSTICE, and Federal Bureau of Investigation, Petitioners, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent. Seth Rosenfeld, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 717

859 F.2d 717

57 USLW 2255

Seth ROSENFELD, Plaintiff-Appellee, v. UNITED STATES of America; The Federal Bureau of

Investigation, Defendants- Appellants.

UNITED STATES DEPARTMENT OF JUSTICE, and Federal Bureau of

Investigation, Petitioners, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF

CALIFORNIA, Respondent.

Seth Rosenfeld, Real Party in Interest.

No. 87-2975.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 18, 1988.

Decided Oct. 12, 1988.

As Amended on Denial of Rehearing and Rehearing En Banc Dec. 22, 1988.

Gregory C. Sisk, Dept. of Justice, Washington, D.C., for defendants-appellants/petitioners.

Thomas Steel, San Francisco, Cal., for plaintiff-appellee/real party in interest.

Appeal from the United States District Court for the Northern District of California.

Before SCHROEDER, FLETCHER and BOOCHEVER, Circuit Judges.

FLETCHER, Circuit Judge:

The United States appeals a district court award of interim attorney's fees to Rosenfeld, plaintiff-appellee, in Freedom of Information Act (FOIA) litigation. We dismiss the appeal and deny the Government's petition for a writ of mandamus.

BACKGROUND AND PROCEEDINGS BELOW

Seth Rosenfeld, a journalist, seeks disclosure under the Freedom of Information Act, 5 U.S.C. Sec. 552, of FBI documents relating to FBI activities on the University of California-Berkeley campus in the 1960s for use in connection with a book he is writing. Between 1981 and 1982 Rosenfeld filed the nine FOIA requests at issue in this case; with each he also requested a waiver of duplication fees pursuant to 5 U.S.C. Sec. 552(a)(4)(A), which allows the waiver of fees when disclosure of the information would be in the public interest. In February 1984, after three years without the release of any documents, the FBI agreed to waive 20 percent of the duplicating costs but still released no documents. Finally in February and March 1985 Rosenfeld filed actions seeking document release and a full waiver of duplication costs. Only then did the government begin releasing documents, and, on October 29, 1985, the district court ruled that the FBI must waive all duplication fees. Rosenfeld then filed a request for interim attorney's fees under 5 U.S.C. Sec. 552(a)(4)(E), which he alleged were necessary for his counsel, a four-attorney firm handling the case pro bono publico, to continue its representation.

On October 1, 1987 the district court awarded Rosenfeld $33,758.87 in interim attorney's fees and costs for time spent on the initial document release and duplication fee waiver aspects of the case, and ordered the government to pay the award within 60 days. The district court denied the government's motion for reconsideration or stay pending appeal. We granted a stay pending decision on the merits by our court. Also before us is Rosenfeld's motion to dismiss the appeal for lack of jurisdiction. Litigation over the government's claimed exemptions from disclosure of certain documents is continuing in the district court.

DISCUSSION

The Freedom of Information Act provides attorney's fees to parties who prevail against the United States:

The court may 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).

The narrow subject of this appeal is the propriety of the district court's interim fee award and its order that the government pay the award in 60 days under threat of contempt of court. The government argues that the waiver of sovereign immunity contained in the FOIA attorney's fee provision, unlike most analogous provisions, does not extend to interim awards, and that even if it did, the order to pay within 60 days could not be obeyed without violating the Judgment Fund statute, 31 U.S.C. Sec. 1304. It urges our review to prevent the irreparable harm to the United States' sovereign immunity that would result from payment of an illegal award.

Our first hurdle is to ascertain a basis for appellate jurisdiction of this appeal. Rosenfeld has filed a Motion to Dismiss for lack of jurisdiction, contending that the interim fee award is not a final order under 28 U.S.C. Sec. 1291. If the award is not final,

then the government asks for review notwithstanding, either under the collateral order doctrine, the Forgay-Conrad hardship exception, as appeal of an injunction under Sec. 1292(a)(1), or, finally, by considering its appeal as a petition for writ of mandamus.

I. Finality of the Grant of an Interim Fee Award under FOIA

Assuming for the moment that FOIA provides for interim fee awards, a point the government vigorously contests, such awards are not final, appealable orders.

Our circuit has not considered specifically the finality of interim fee awards under FOIA, nor, to our knowledge, has any other circuit. However, we have joined several other circuits in holding that the grant or denial of interim attorney's fees pursuant to other federal statutes is not an appealable final order under 28 U.S.C. Sec. 1291. In Hillery v. Rushen, 702 F.2d 848 (9th Cir.1983), we granted a motion to dismiss for lack of jurisdiction, holding that an interim fee award under 42 U.S.C. Sec. 1988 was not appealable under Sec. 1291. See also Morgan v. Kopecky Charter Bus Co., 760 F.2d 919, 921 (9th Cir.1985) (order denying interim attorney's fees under Title VII, 42 U.S.C. Sec. 2000e-5(k), not appealable); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 829 F.2d 601, 602 (7th Cir.1987) (Section 1988 interim fee award not appealable as final order); Hastings v. Maine-Endwell Cent. School Dist., 676 F.2d 893, 895 (2d Cir.1982) (same); Yackowicz v. Pennsylvania, 683 F.2d 778, 782 (3d Cir.1982) (denial of interim fees under Sec. 2000e-5(k) not appealable final order); Ruiz v. Estelle, 609 F.2d 118 (5th Cir.1980) (Section 1988 interim fee award "patently not yet final").

The circumstances of this award do not distinguish it from other nonfinal interim fee orders. This award does not dispose of the underlying litigation; it did not come after a final judgment on the merits; it does not even dispose of the issue of attorney's fees, since the district court explicitly provided for revision of the amount at the conclusion of the litigation. Thus, we conclude that the district court's interim award is not a final order appealable under 28 U.S.C. Sec. 1291.

II. Appealability under Collateral Order Doctrine

A "small class" of nonfinal orders are nevertheless appealable if they satisfy the requirements of the narrow "collateral order doctrine" of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949). The order sought to be appealed must:

1) conclusively determine the disputed question;

2) resolve an important issue completely separate from the merits of the action; and

3) be effectively unreviewable on appeal from a final judgment.

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 531 (1978). "If the order at issue fails to satisfy any one of these requirements, it is not appealable under the collateral-order exception to Sec. 1291." Gulfstream Aerospace Corp. v. Mayacamas Corp., --- U.S. ----, 108 S.Ct. 1133, 1137, 99 L.Ed.2d 296 (1988). Here, neither the first nor third requirement is met, nor possibly even the second.

1) Conclusive determination. Neither part of the district court's order is conclusive. The fee award itself determines neither the total amount of fees due Rosenfeld's counsel, nor Rosenfeld's absolute entitlement to attorney's fees. See Hastings v. Maine-Endwell, 676 F.2d at 896 (interim fee award not appealable collateral order because it does not determine claim for attorneys fees with finality). Here, upon completion of the district court proceedings, the government could recover the interim fees it paid out if it successfully appealed the determination that Rosenfeld had substantially prevailed on the duplication fee waiver issue, which formed the limited basis of the interim fee award. Also, the district court, after computing a lodestar figure based on compensable work, has explicitly refrained from applying 2) Completely separate issue. The fee waiver determination was arguably an issue "completely separate" from the ongoing litigation of the merits of the government's claimed exemptions to document disclosure. (The government, however, never attempted to collaterally appeal the actual fee waiver determination.) The fee award, in contrast, although merited because Rosenfeld prevailed on the waiver issue, has a purpose intertwined with the ongoing litigation. One purpose of an interim award is to enable a meritorious suit to continue; its appeal, by freezing the progress of the ongoing litigation, thwarts that purpose.

a multiplier pending completion of the litigation.

3) Effectively unreviewable on appeal. This award is not "unreviewable on appeal" because, as mentioned above, the government can recoup erroneously awarded interim fees from Rosenfeld if it appeals from the district court's final disposition of the litigation. As Judge Posner pointed out in Palmer v. City of Chicago, 806 F.2d 1316, 1318 (7th Cir.1986), "the second 'prong' is part of the third." It can also, as in this case, overlap with the first.

The government relies heavily on Palmer v. City of Chicago to support its argument that the interim fee award is collaterally appealable under Cohen because of the irreparable harm that may be inflicted by an order to pay interim fees. 806 F.2d at 1318 (collateral orders appealable "only when they threaten irreparable harm"). In Palmer, a district court ordered a city to pay immediately interim fees that might not have been recoverable if the award was later held invalid. The Seventh Circuit held that the order threatened sufficient harm to justify appellate review....