Weisberg v. U.S. Dept. of Justice

Decision Date05 October 1984
Docket NumberNos. 82-1229,83-1722 and 83-1764,82-1274,s. 82-1229
Citation745 F.2d 1476,240 U.S.App.D.C. 339
PartiesHarold WEISBERG v. U.S. DEPARTMENT OF JUSTICE, Appellant. (Two cases). Harold WEISBERG, Appellant, v. U.S. DEPARTMENT OF JUSTICE. (Two cases).
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (Civil Action No. 75-01996).

James H. Lesar, Washington, D.C., for Weisberg, appellant in Nos. 82-1274 and 83-1764 and cross appellee in Nos. 82-1229 and 83-1722.

John S. Koppel, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief for U.S. Dept. of Justice, appellee in Nos. 82-1274 and 83-1764 and cross appellant in Nos. 82-1229 and 83-1722.

John M. Rogers and Marilyn S.G. Urwitz, Attys., Dept. of Justice, Washington, D.C., also entered appearances for U.S. Dept. of Justice.

Before MIKVA, BORK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This Freedom of Information Act suit concerns a nine-year quest for information from the Department of Justice ("the Department" or "DOJ") and its various components with respect to the investigation of the assassination of Dr. Martin Luther King, Jr. In these cross-appeals, the parties challenge various orders of the District Court. Appellant and cross-appellee Harold Weisberg 1 challenges the District Court's rulings that the Department performed an adequate and good-faith search of its records; that the FOIA exemptions claimed by the Department were properly invoked; and that the Department did not owe a consultancy fee to Mr. Weisberg. The Department of Justice as appellee and cross-appellant primarily challenges the District Court's award of attorneys' fees to appellant, arguing that Mr. Weisberg did not substantially prevail in this litigation; that even if eligible for such an award he is not entitled to an award of attorneys' fees; and that even if Mr. Weisberg was both eligible for and entitled to an attorneys' fees award, the award was excessive. Appellant Weisberg, on cross-appeal, contends that the District Court's calculation of attorneys' fees was erroneous because it excluded certain amounts of time; improperly determined the hourly rate; and refused to adjust the award to take account of the delay in receiving the fees.

We affirm the District Court's award of summary judgment in favor of the Department as to the adequacy of its search, the propriety of the claimed exemptions and the absence of a consultancy agreement. We vacate the District Court's order awarding attorneys' fees and remand for reconsideration of whether appellant substantially prevailed in this litigation. Should the District Court conclude that he did substantially prevail, we direct the court on remand to reconsider whether appellant is entitled to an award of attorneys' fees. If the District Court concludes that Mr. Weisberg is so entitled, we further direct the court to consider exclusion of any non-productive time devoted to this litigation and to consider whether the Supreme Court's intervening decision in Blum v. Stenson, --- U.S. ----, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), permits an upward adjustment of the lodestar award in the circumstances of this case.

I

Before embarking on a discussion of the issues presented by these appeals, we first chronicle the most significant events in the lengthy history of this litigation.

A

On April 15, 1975, Harold Weisberg filed an administrative request with the Attorney General under the Freedom of Information Act ("FOIA" or the "Act"), 5 U.S.C. Sec. 552 (1982), for information concerning the assassination of Dr. Martin Luther King, Jr. 2 The request sought disclosure of certain categories of information concerning evidence developed by the FBI during its investigation of the assassination. 3 It requested the results of ballistics tests, neutron activation and spectrographic analyses, 4 scientific tests conducted on certain physical evidence, photographs and sketches of any suspects, photographs of the crime scene, and any information provided to other authors. The FBI wrote Mr. Weisberg acknowledging the request, but advised him that the large volume of requests reviewed in the wake of the FOIA amendments of 1974 would necessitate a delay in processing the request. Joint Appendix ("JA") 32, 34, 35. See Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 610 (D.C.Cir.1976) (describing "virtual deluge of requests since the effective date of the FOIA amendments"). Mr. Weisberg brought suit seeking compliance with this first request on November 23, 1975. JA 28-35.

One month after filing suit, on December 23, 1975, Mr. Weisberg filed another administrative request under the Act. Far more expansive than his April 1975 request, this second request specified twenty-eight different categories of information concerning Dr. King's assassination. The categories of information included, to list only a few, all letters, documents, reports, memoranda, and physical evidence with respect to the investigation of the King assassination, reports concerning fingerprints, and communications relating to the investigation between state prosecutors and DOJ officials. JA 37-41. 5 One day later, before expiration of the ten-day statutory response period 5 U.S.C. Sec. 552(a)(6)(A)(i), Mr. Weisberg amended his previously filed complaint pursuant to Fed.R.Civ.P. 15(a) to include the second administrative request. JA 36.

The Department filed an answer, contending that the first complaint, based on the April 1975 request, was moot because DOJ had already disclosed information responsive to that request. JA 42-43. The Department further contended that the amended complaint was premature inasfar as it was based on the unexhausted requests for information in appellant's second request. Id. Despite these contentions, the District Court permitted the litigation to continue. Transcript of Hearing, May 5, 1976, JA 107. Between April and August 1976, appellant was provided with information responsive to his first request from the files of the Department's Civil Rights Division. 6

At this early stage of the litigation, the issues focused primarily on the first FOIA request (in April 1975) and on Mr. Weisberg's desire to have copies of certain photographs copyrighted by TIME, Inc., but located in the FBI files. The Department, however, refused by virtue of TIME's copyright 7 to copy the photographs for release to Mr. Weisberg, although the Department did provide access to them.

Thereafter, the litigation focused primarily upon the adequacy of the Department's searches of its files for information responsive to Mr. Weisberg's two requests. The Department completed the processing of much of the first request by October 1976, see R. 25, but by that time had only begun processing appellant's second request. Transcript of Hearing, Oct. 8, 1976, JA 244-45. The Department construed Mr. Weisberg's second request broadly, interpreting it to include not only the specific items requested, but also the entirety of the FBI's headquarters files concerning the investigation of the King assassination, the so-called "Murkin" files (an FBI abbreviation for the King murder case). See, e.g., R. 32; Transcript of Hearing, Oct. 8, 1976, JA 243-45. The FBI interpreted the request in this manner primarily because of the voluminous quantity of the FBI's Murkin files and the correspondingly large size of the request, the historical significance of the King assassination investigation, and the public's interest in the FBI's investigation. During late 1976 and through 1977, the FBI processed the great bulk of these files, which resulted in the disclosure of approximately 45,000 pages of documents.

Not content with the extent of DOJ's disclosures, however, Mr. Weisberg continued to maintain that the FBI had failed to conduct an adequate search. In particular, appellant wanted the FBI to search the files of certain FBI field offices, in addition to the files at FBI headquarters. In an attempt to resolve amicably the disagreements pertaining to the scope of the search, the Department and appellant entered into a stipulation on August 11, 1977, defining the Department's search obligations. JA 268. Approved by the District Court, the stipulation provided a timetable for completion of the Department's processing of Mr. Weisberg's two requests. 8 It specified, among other things, that the FBI would provide copies of the contents of some of the FBI's field office files; that duplicates of the headquarters' Murkin files which had already been provided would not be reprocessed; but that attachments not provided to appellant would be processed and provided; and finally, that duplicates with notations would be provided. The stipulation further provided that documents pertaining to the Sanitation Workers Strike in Memphis and "the Invaders," see supra note 5, items 25-26, would be provided. 9 Appellant agreed in the stipulation that if the Department complied with its terms, he would forgo filing a motion under Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Subsequent to entering into the stipulation, the Department processed Mr. Weisberg's request in accordance with the agreed-upon timetable, and in consequence, Mr. Weisberg received an additional 15,000 pages of documents. See supra note 8. 10

Despite receiving approximately 60,000 pages of documents, Mr. Weisberg continued to assert that the Department had not adequately searched its files. He also contended that the Department improperly withheld material in documents that had been processed. In...

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