Vermont Low Income Advocacy Council, Inc. v. Usery

• Citation: 36 A.L.R. Fed. 519,546 F.2d 509
• Decision Date: 09 December 1976
• Docket Number: No. 145,D,145
• Parties: , 2 Media L. Rep. 1281 VERMONT LOW INCOME ADVOCACY COUNCIL, INC., Plaintiff-Appellant, v. William J. USERY, Secretary of Labor, Defendant-Appellee. ocket 76-6077.
• Court: U.S. Court of Appeals — Second Circuit

Page 509

546 F.2d 509

36 A.L.R.Fed. 519, 2 Media L. Rep. 1281

VERMONT LOW INCOME ADVOCACY COUNCIL, INC., Plaintiff-Appellant, v. William J. USERY, Secretary of Labor, Defendant-Appellee.

No. 145, Docket 76-6077.

United States Court of Appeals Second Circuit.

Argued Nov. 17, 1976.

Decided Dec. 9, 1976.

Michael H. Lipson, Burlington, Vt. (John A. Dooley, III, and Vermont Legal Aid, Inc., Burlington, Vt., of counsel), for plaintiff-appellant.

Eloise E. Davies, Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Washington, D. C., George W. F. Cook, U. S. Atty., Rutland, Vt., Leonard Schaitman, Dept. of Justice, Washington, D. C., of counsel), for defendant-appellee.

Before LUMBARD, FRIENDLY and MULLIGAN, Circuit Judges.

FRIENDLY, Circuit Judge:

This appeal arises under the provision of the Freedom of Information Act (FOIA), § 552(a)(4)(E), ¹ authorizing a court to award reasonable attorney fees and other litigation costs in any case where the complainant has substantially prevailed. Although we do not agree with so much of the decision of the district court as indicates that an order directing production is a necessary condition for an award of attorney fees and costs under the FOIA, we affirm the denial of an award on the facts of this case.

By letter of August 28, 1975, a request was made under the FOIA on behalf of the Vermont Low Income Advocacy Council, Inc. (VLIAC) to the Boston office of the United States Department of Labor for

All records, reports or documents prepared by Department of Labor "monitors" in connection with on-site evaluations of all Vermont apple growers' efforts to recruit domestic labor to pick the 1975 apple harvest (prepared at any time during the period May-July 1975).

This request was in furtherance of VLIAC's efforts to persuade the Department against certification of foreign labor to pick the Vermont apple harvest. VLIAC apparently first learned of the existence of the documents requested in August 1975 and was seeking them in connection with its efforts to prevent the use of foreign labor for the 1975 autumn harvest. This apple harvest in Vermont, we are told, is generally concluded by the third or fourth week of September.

The Boston office of the Labor Department denied VLIAC's request by a letter of September 8 within the 10-day response period of the FOIA, 5 U.S.C. § 552(a) (6)(A)(i). It cited the "intra-agency memoranda" exemption, see 5 U.S.C. § 552(b)(5); 29 C.F.R. § 70.25. By letter of September 16, VLIAC appealed this denial to the Solicitor of Labor in Washington, D.C., disputing the applicability of the exemption on the basis of the content of the material requested. On October 2, the Solicitor's office wrote to VLIAC acknowledging receipt of the appeal on September 24 and advising that a reply would be sent by October 22; the letter also referred to the necessity of obtaining the records from the regional office prior to disposition of the appeal. The Solicitor's office requested the records by telephone from the regional office on October 3; apparently something was forwarded immediately to the Washington office but was lost in transit.

The Department did not communicate further with VLIAC within the 20-day period for determining appeals under the FOIA, 5 U.S.C. § 552(a)(6)(A)(ii). By letter of October 30, VLIAC informed the Solicitor's office that it intended to file suit to obtain the requested records unless they were received by November 5. The letter was received by Ms. Petters, Administrative Counsel for Legal Services in the office of the Solicitor of Labor, on November 5. In response, Ms. Petters sent a telegram to counsel for VLIAC on November 6. This said:

RE YOUR FOIA APPEAL. FILE NOT RECEIVED IN THIS OFFICE BECAUSE NOT LOCATED. UNDERSTAND FILE IN THE MAIL TO US TODAY. PLEASE ADVISE YOUR TELEPHONE NUMBER SO THAT WE MAY CONTACT YOU TO DISCUSS.

The materials sent on November 6 to the Washington office were received on November 10; however, they related to the period September-October 1975, and thus were not those requested by VLIAC. Apparently because of the responsible official's absence from her office for conferences, including a training program to insure proper compliance with FOIA and the recently enacted Privacy Act, 5 U.S.C. § 552a, and because of her other official duties, this error was not discovered until the fourth week of November at which time it was thought that the requested material did not exist.

VLIAC did not respond to the suggestion of further discussion or the request for its telephone number in the Department's November 6 telegram although receipt of the telegram is admitted. Instead, on November 12 VLIAC filed suit in the United States District Court for the District of Vermont seeking preliminary and permanent injunctive relief against the withholding of the requested records and attorney fees and costs under § 552(a)(4)(E) of the FOIA. ²

The correct records from the regional office were received in Washington on December 11 following a second search for the material ordered by the Solicitor's office. On December 12, an informal determination was made to grant VLIAC's appeal with the exception of certain minor deletions deemed necessary to prevent invasion of personal privacy, see 5 U.S.C. § 552(b)(6); 29 C.F.R. § 70.26. On December 16, VLIAC mailed its motion for summary judgment to the district court and this was filed the following day together with the Government's answer denying VLIAC's entitlement to relief. On or about December 16, after VLIAC had mailed its summary judgment motion, VLIAC was informed by telephone of the Department's favorable decision of its appeal; that decision later was embodied in a letter of December 22 from the Solicitor of Labor accompanying the documents which were received by VLIAC on December 30. VLIAC then withdrew its motion for summary judgment and on January 13, 1976 filed a motion seeking an award of attorney fees and costs pursuant to § 552(a)(4)(E). On February 26 the Government filed a motion asking that the suit be dismissed as moot and opposing VLIAC's motion for fees. A hearing was held on February 27.

In an opinion filed April 1, 1976, Chief Judge Holden of the District Court for Vermont dismissed the action and denied VLIAC's motion for attorney fees and costs. His reasoning was:

In the first instance the information was withheld on what may have been an erroneous interpretation of the recent statute. On appeal the administrative decision was delayed until the correct requested material could be retrieved from the Regional office. While the delay generated the present litigation, as soon as the defendant discovered the plaintiff was lawfully entitled to a part of the records, the appropriate material was supplied. Certain material was withheld apparently with some legal justification. In any event, there is nothing this court has done to grant the plaintiff the relief prayed for in the complaint. There has been no judicial action to establish the plaintiff as the prevailing party. The plaintiff's motion for an award of attorney's fees and costs will be denied and the action dismissed.

This appeal followed.

The legislative history of § 552(a)(4)(E) is unusually complete, and we begin by setting it out.

The amendment had its origin in a 1972 report of the House Committee on Government Operations, H.Rep. No. 92-1419 (92d Cong., 2d Sess.), reprinted in Freedom of Information Act and Amendments of 1974 (94th Cong., 1st Sess., March 1975) (hereafter Leg.Hist.), p. 3. The Committee recommended:

Court costs and reasonable attorneys' fees should be awarded, in the discretion of the court, to the complainant if the court issues an injunction or order against the Government agency on a finding that the information sought was improperly withheld from the complainant.

Leg.Hist. 90. The bill as passed by the House, H.R. 12471, provided in § 1(e):

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 United States or an officer or agency thereof, as litigant, has not prevailed.

Leg.Hist. 147. The section-by-section analysis of the House Report, H.Rep. 93-876, U.S.Code Cong. & Admin.News 1974, pp. 6267, 6276, stated:

Section (1)(e) . . . allows the assessment of attorney fees and costs against the agency on behalf of a litigant. The assessment of fees and costs is at the option of the court.

Leg.Hist. 130. The Senate bill, S. 2543, changed the emphasis:

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. In exercising its discretion under this paragraph, the court shall 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.

Leg.Hist. 202-03. The Senate Report, S.Rep. No. 93-854, explained:

The bill allows for judicial discretion to determine the reasonableness of the fees requested. Generally, if a complainant has been successful in proving that a government official has wrongfully withheld information, he has acted as a private attorney general in vindicating an important public policy. In such case it would seem tantamount to a penalty to require the wronged citizen to pay his attorneys' fee to make the government comply with the law. However, the bill specifies four criteria to be considered by the court in exercising its discretion: (1) "The benefit to the public, if any deriving 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 sought had a reasonable...